Wills, Trusts & Estates Prof Blog

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

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Monday, July 28, 2014

Planning For Your Kids

Children2It is important to have a plan in place for your children in the event of your death.  Who will be your child’s guardian and who will be the guardian of your estate?  While these difficult decisions may not have one right answer, there are several important considerations to take into account when you are making your will and planning your child’s future.

Although you are allowed to designate someone as the guardian of your child, in most states the court has the final decision as to who will be the most appropriate caregiver.  “It’s at the discretion of the court as to what’s in the best interest of the child.”   When drafting your will, it is important to take into consideration that your money and your child can go in opposite directions.  Two types of guardians can be specified in your will—the guardian of the child, and the guardian of the property of the estate.  Though they can be the same person, that is not a requirement.  “Naturally, the answer is different for everyone and depends on what you want for your child as well as his or her caregiver . . . The person who looks after and cares for your child may not be the same person you’d want handling his or her financial life, as they may require a different skill set.  To control risk, some people decide to keep the roles separate.” 

The best way to do this is by creating a trust.  In establishing a trust, you can be explicit about how those funds are to be used for the care and education of the child.  When thinking about the appropriate dollar amount to leave for your child’s care, remember that children are expensive.

See Kathryn Tuggle, How to Give Away Your Kids, The Street, July 28, 2014.

July 28, 2014 in Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

University of Montana School of Law seeks Property Professor

Montana University

The University of Montana School of Law invites applications for a tenure-track ssistant Professor of Law in property law.  Below is the official announcement of the position.

Best place to live and teach in the U.S.:  The University of Montana School of Law anticipates hiring a full-time, tenure-track professor beginning in the 2015-2016 academic year to teach in the area of property and related courses.  We are committed to integrating theory with practice, making substantial practice experience in the areas to be taught particularly valuable.

Title: Assistant Professor
Position Type: Academic
Closing Date: Screening begins 9/12/2014; applications accepted until further notice or the position is filled
Full time academic year position (10 month contract) beginning fall semester 2015
Entry Rate: $72,000-$76,000
Benefits: Medical Insurance/Mandatory Retirement/Professional Development/Partial Tuition Waiver/Wellness

Primary Duties: Primary duties include teaching, scholarship and service, as set forth in the University of Montana School of Law Faculty Handbook. UM Law faculty may also be asked to assist with clinical course supervision.

Specific duties include: Teaching a required Property Law course to ~83 students, along with related elective courses such as intellectual property; advising students with questions about the practice and study of property law; interacting with state, tribal, and federal constituencies; producing scholarship and other written creative achievement; and engaging in professional service, including participation on law school and university committees. 


  • Juris Doctorate degree from an ABA accredited law school
  • a superior academic background
  • substantial relevant practical experience in property law
  • potential for effective teaching
  • potential for scholarship
  • the ability to work collegially with students, staff, faculty, and external constituencies of the law school
  • creativity, resourcefulness, fairness, compassion, and initiative

Application review will begin September 12, 2014, and continue until the position is filled.  

Apply online only at http://umjobs.silkroad.com

IMPORTANT: Please do not send applications directly to the University of Montana School of Law.  Applications sent directly to the School of Law will not be considered or forwarded to Human Resource Services.  Only applications submitted through the UM online applicant system will be considered. No exceptions.  For a full position description, list of materials & instructions to apply, visit https://umjobs.silkroad.com/   

July 28, 2014 in Faculty Positions -- Permanent | Permalink | Comments (0) | TrackBack (0)

Top 5 Myths About Trusts

Seymour hoffmanRecently, Philip Seymour Hoffman declined to take the advice of his attorney who advised him to create a trust.  Hoffman said he did not want his three children to be “trust fund kids.”  Because of Hoffman’s aversion to proper estate planning, his 34 million dollar estate faces a huge tax bill and other problems that could have been avoided if he listened to the legal and financial advice he was given.  Similarly, Sting expressed a similar sentiment and did not want his children to have a trust fund. 

While Sting and Hoffman may have good intentions, their beliefs highlight the myths surrounding trusts, especially revocable living trusts.  Provided below are the most common myths:

  1. Trust Funds = Spoiled Children. While a large trust fund can lead to spoiled children, it doesn’t have to.  Trusts can help the creator do the opposite.  A person who sets up a trust with an attorney can craft language to tie the distributions to conditions or events, based on that person’s values and goals, this way money can be passed based on how grantor’s see fit. 
  2. Trusts are for the Rich. Trusts are for anyone who wants their heirs to avoid the expense, hassle and stress of probate court.  A living trust also helps by setting up one or more people to manage their assets during their life if they become incapable.
  3. Losing Control. In the case of a revocable trust, it can be changed, amended, or canceled altogether.  Trusts also foster control even after someone passes away.
  4. I Have a Will. Wills, unlike trusts, have to pass through probate court to work.  This means they are public record, more expensive, and difficult to administer.  They can also lead to family fighting.  With trusts, there are tax benefits with which wills and joint bank accounts cannot achieve.
  5. I Must Leave All My Money to My Kids. Anyone can set up a trust and name whomever they want to receive their money, including charities, other family members, close friends, trusted employees, etc.

See Danielle and Andy Mayoras, Philip Seymour Hoffman and Sting Highlight Five Myths About Trusts, Forbes, July 28, 2014.

July 28, 2014 in Estate Planning - Generally, Income Tax, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Caring for an Ailing Spouse


When one spouse has a chronic illness there are obvious challenges facing the couple.  Provided below are various answers from couples as to how they have made their difficult situation work.  Not only do they say that it takes love, mutual devotion, acceptance and a positive outlook, but they also credit friends and family, medical professionals and social services for help. 

  • Privilege to Provide Care.  David Steiner took care of his wife, Mary, who was confined to a wheelchair for 12 years and says it was a privilege.  “I am so grateful for the time we had and the help I had from all of the health care professionals over the years . . . I learned from her and from them how very precious life is.” 
  • Significance of Support.  Deborah Ruppert suffers from three conditions, and her husband handles household chores.  The couple does not have a car so they rely on the Red Cross Ride Connection and friends for transportation.  Deborah says that has been the key to maintaining a healthy marriage, “There is NO good way to do this in the current nuclear family oriented society we have,” stressing that a village approach would help partners share the burden of caregiving together.
  • Pay it Forward.  Brie Stoianoff cares for her husband Kevin who has multiple sclerosis.  While it is stressful to raise a four-year-old, deal with MS and work, Brie and her husband have found positive ways to respond to MS.  They have raised more than $200,000 for MS research through Bike MS. 

See Liza Kaufman Hogan, When One Spouse is Healthy and the Other Isn’t, Forbes, July 25, 2014.

July 28, 2014 in Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Why the 'Top Funds' May Be A Flop

Piggy bank

The “top funds” list has been a staple of the investment press for years, dazzling many with the potential for market-beating gains.  Yet many people do not know that the lists are continually changing, and it is almost impossible for an actively managed fund to stay on top for more than a few years at a time. 

A study by S&P Dow Jones found that just two out of 2,862 funds it managed to stay in the tope quartile after five years.

New investor money is welcome by almost any fund, however, fund managers also know that too much money can be a problem.  Once a fund is full of cash, it becomes more difficult for managers to hide their moves.  This is why funds often close their doors to new money.  Eventually, funds that have too much to invest start to fall back because they cannot outdo the indexes against which they are measured. 

Disciplined investors who pay attention to costs beat active managers, especially as their gains begin to reinvest and compound.  “It’s truly good news, although not likely to end up on the cover of a glossy investment magazine anytime soon.”

See Mitch Tuchman, Why You Should Ignore ‘Top Funds’ Lists, Forbes, July 27, 2014.

July 28, 2014 in Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wyly Brothers Facing Huge Penalties After Found Guilty of Fraud

Money PileAs I have previously discussed, a jury found brothers Samuel Wyly and Charles Wyly guilty of fraud in May. The offshore trusts brought in $550 million in profits for the brothers. Now the SEC is asking the judge to assess $1.4 billion in damages when the case continues in August. An executor of Charles Wyly’s estate took the place of Charles as a defendant in 2011 after Charles’ death.

See Nate Raymond and Joseph Ax Reuters, SEC Seeks $1.4 billion from Texas Wyly Brothers After Fraud Verdict, Sun Sentinel, July 26, 2014.

July 28, 2014 in Trusts | Permalink | Comments (0) | TrackBack (0)

The Uniform Voidable Transactions Act Adds Conflict of Laws

LawThe Uniform Voidable Transactions Act (UVTA) was adopted July 16, 2014 by the Uniform Law Commission, and amended the 1984 Uniform Fraudulent Transfer Act (UFTA). The UVTA added a Conflict of Laws section to the act to account for states not adopting the uniform code, variations in enactment by states, and when foreign parties are involved.

See Jay Adkisson, The Uniform Voidable Transactions Act and Conflict of Laws, Forbes, July 22, 2014.

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

July 28, 2014 in Estate Planning - Generally, New Legislation | Permalink | Comments (0) | TrackBack (0)

Florida Same-Sex Marriage Ban Struck Down

RingsA Florida State judge struck down the state’s ban on same-sex marriage Friday on equal protection and due process grounds. The ruling mirrored the reasoning of other state and federal courts to strike down similar state bans, including the reasoning that the only purpose for such a law is discrimination and thus not a legitimate governmental purpose. The ruling has been stayed pending an appeal by Florida Attorney General.

See, Same-Sex Marriage: Florida Ruling Adds to List of Defeats for State Ban, The Guardian, July 25, 2014.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

July 28, 2014 in Current Affairs, Current Events, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Estate Planning Implications of Clark Unclear

IRAAs I have previously discussed, the Supreme Court has held that inherited IRAs are not protected in Bankruptcy. This has created concern in the estate planning realm since a large amount of inherited assets are no longer protected from creditors as previously thought. This decision affects an estimated $54 billion in inherited IRA funds. The decision also created uncertainty of how other similar assets will be treated. The Court left unanswered whether other types of IRAs, such as traditional and Roth IRAs, will experience the same fate as inherited IRAs.

See Cyril Tuohy, Court Decision Has Implications for Estate Planning, Insurance Net News, July 24, 2014.

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

July 28, 2014 in Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Sunday, July 27, 2014

eLearning Program on Pre-Mortem Planning

CLE Photo

The American Bar Association is holding a Paralegal eLearning Program entitled, Immediate Pre-Mortem Planning, on August 14, 2014 from 12:30 – 1:30 PM CT via webinar.  Here is why you should attend:

The ABA Section of Real Property, Trust and Estate Law is proud to continue our professional development series focused on paralegals, legal assistants, and others working in the areas of Trust & Estate Law, with the 2014 program 'Til Death Do We Part - Estate Planning During Client's Lifetime. This program is co-sponsored by the ABA Standing Committee on Paralegals.

Attendees of the Paralegal eLearning Program will learn substantive legal and ethics issues, as well as best practices, from leading industry professionals with in-depth knowledge and hands-on experience in Trust & Estate Law. The program includes ten 60-minute webinar sessions, and attendees can register for the entire series or individual sessions. Those who sign-up for the entire series after it begins will be registered for the remaining webinar sessions and receive recordings of the sessions that have already occurred.

July 27, 2014 in Conferences & CLE, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)