Wills, Trusts & Estates Prof Blog

Evil probate lawyer faces life in prison

Terry Erwin Stork, an Austin, Texas lawyer, has recently pled guilty to felony theft for conduct relating to various estates.

Here is some of the conduct in which Stork is accused of engaging:

• Mismanaged or stole property worth over $800,000.
• Engaged in the evil conduct for over 20 years.
• Lived in the home of a deceased client for 15 years.
• When he sold the home, he deposited the proceeds in his personal account.
• Drove a deceased client’s car.
• Used a deceased client’s money to purchase china for his collection.
• Failed to deliver property to beneficiaries.

Stork had previously resigned from the practice of law.

See Tony Plohetski, Longtime attorney pleads guilty to estate thefts, American-Statesman, June 28, 2008.

See also Tony Plohetski, Fighting the touchy battle of estate theft, American-Statesman, June 27, 2008. (Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.)

Iowa enacts Viatical Settlement Act

On May 10, 2008, the Iowa governor signed into law the "Viatical Settlements Act" to regulate these settlements and to provides penalties and fees.

See 2008 Ia. Legis. Serv. S.F. 2392.

Is Maringo suffering from an insane delusion?

The following excerpt is from Maringo v. McGuirk, 2008 WL 631304 (5th Cir. 2008).  The case is actually about whether an attorney was guilty of harassment but the facts certainly make one wonder whether Maringo was suffering from an insane delusion which would render him unable to execute a valid will.

Maringo alleged that Erica McGuirk, an attorney for United States Immigration and Customs Enforcement (ICE), and her ghost, “the reincarnated Jezebel Princess of Evil,” have caused him mental distress by appearing before him, particularly while he is sleeping at night or showering. According to Maringo's complaint, McGuirk and her ghost sexually harassed him by exposing themselves and “forcing [him] to watch or participate”; forced him to read ghost and horror literature with them; insisted that he listen to a ghost-themed radio show; and appeared with “Santa Claus hats, wings and [a] horn with shaggy, black feathers.” He alleged that after complaining about this matter, ICE officials retaliated against him by placing him in a single-person cell, where they could more easily kill him by poisoning his food. 

Idaho grants spouses the ability to hold community real property with rights of survivorship

Starting tomorrow (July 1, 2008), the Idaho spouses may now hold community real property with rights of survivorship.
   

Here is the statement of the new law's purpose prepared by the Idaho legislature:

Idaho law allows for real estate to be held as "Joint Tenants with Right of Survivorship" ("JTWROS") and that method is widely used in this State.  This allows transfer of the real estate to the surviving joint tenant by recordation of a death certificate in the county where the real estate is held, thereby avoiding a probate of such real estate.  However, there are clear tax and other advantages to holding real estate in community property status.  Holding property as JTWROS can be interpreted to lose the community property status of the real estate and therefore holding community property as JTWROS property to avoid probate is risky.  A husband and wife can record a Devolution Agreement to pass the real estate at death, somewhat like JTWROS property, but the method is cumbersome and limited, and does not cover all potential questions that may arise.  Arizona, like Idaho a community property state, has had "Community Property With Right of Survivorship" for a number of years, without problems being created.  The language of this statute is taken almost verbatim from the Arizona statute, with modifications as proposed by real estate professionals in Idaho.

This Bill will allow spouses to pass property at the death of the first to die spouse without a probate or summary administration, while keeping the community property status of the property clear.

See 2008 Idaho Laws Ch. 175.

New Hampshire to examine guardians for the elderly

New Hampshire is wisely studying how to care for the state's aging population anticipating that the number of its citizens over age 65 will double by 2030.

Administrative Judge David King has created a "Task Force on Professional Guardians" which will be chaired by Hillsborough County Probate Judge Raymond Cloutier.  The key things which the force will examine will be the qualifications and training of professional guardians and how the courts may be able to assist family members who serve as guardians.

See AP, Aging NH population prompts look at elderly guardians, Boston.com, June 25, 2008.

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.

Top SSRN Downloads

Here are the top downloads from April 30, 2008 to June 29, 2008 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	201	2007 Developments in Connecticut Estate and Probate Law John R. Ivimey, Jeffrey A. Cooper, Author - Affiliation Unknown, Quinnipiac University School of Law, Date posted to database: April 5, 2008 Last Revised: April 5, 2008
2	142	Ask Not What Your Charity Can Do for You: Robertson v. Princeton Provides Liberal-Democratic Insights into Cy Pres Reform Iris Goodwin, University of Tennessee, Knoxville - College of Law, Date posted to database: April 24, 2008 Last Revised: May 29, 2008
3	120	Result-Selectivism in Private International Law Symeon C. Symeonides, Willamette University - College of Law, Date posted to database: May 20, 2008 Last Revised: June 26, 2008
4	82	Limited Liability Companies as Exempt Organizations Bradley T. Borden, Washburn University - School of Law, Date posted to database: June 11, 2008 Last Revised: June 11, 2008
5	76	Portability of Exemptions Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: May 5, 2008 Last Revised: May 5, 2008
6	60	Rediscovering the Duty of Obedience: Toward a Trinitarian Theory of Fiduciary Duty Rob Atkinson, Florida State University College of Law, Date posted to database: May 22, 2008 Last Revised: May 22, 2008
7	36	Marilyn Monroe's Legacy: Taxation of Postmortem Publicity Rights Joshua C. Tate, Southern Methodist University - Dedman School of Law, Date posted to database: May 15, 2008 Last Revised: June 2, 2008
8	34	Marketing Wills Michael McCunney, Alyssa A. DiRusso, Author - Affiliation Unknown, Cumberland School of Law, Samford University, Date posted to database: April 2, 2008 Last Revised: April 5, 2008

Rest in Peace??

Noah, Louisa, and Martha Aldrich died over 150 years ago in Vermont.  They were buried in a private cemetery in Hartland.

J. Michel Guite petitioned the Woodstock Probate Court for permission to move the graves from the farm Guite is in the process of purchasing.

At first, Marcia Neal, the great-great-great granddaughter of Noah objected but later withdrew her objection after reaching some type of agreement with Guite.

Then, Jerome B. King object because he buried his parents' cremains in the cemetery over 25 years ago when he owned the farm.

Judge Joanne M. Ertel rejected King's petition because Guite was not asking permission to move the cremains of King's parents.  Thus, King lacked standing to object to Guite's petition.

Nonetheless, Judge Ertel chastised Guite as follows:

This court finds it difficult to fathom his persistence in the face of such widespread and heartfelt opposition. It's hard to imagine introducing yourself to a community with an action the community finds abhorrent. Nonetheless, if he can find a legal basis, Mr. Guite seems to remain committed to obliterating the burying ground as it currently exists, grave by grave, legal issue by legal issue, until no semblance of it exists at its current location. * * *

Perhaps it is time for the Vermont Legislature to consider protecting the sanctity of old cemeteries because of the strong community sentiment expressed so eloquently by so many Vermonters who continue to have that strong sense of community, faith and tradition.  Consequently, the court will be sending copies of this decision to local legislators so that they may become aware of the communities concerns and consider addressing them.

See Gosh O'Gorman, Court OKs grave removal, Rutland Herald, June 27, 2008.

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.

Charitable Gift Planning

Thomas J. Ray, Jr. (attorney, St. Louis, Missouri) has recently published his book entitled Charitable Gift Planning: A Practical Guide for the Estate Planner (2nd ed.).

Here is a description of this book:

When Congress passed the Pension Protection Act of 2006, they created what some have called "the most significant reform to charitable tax planning since the Tax Reform Act of 1969." Now Thomas J. Ray, Jr. has updated and revised his bestselling deskbook, Charitable Gift Planning, to clearly explain the impact of the Pension Protection Act as well as the Tax Reform and Health Care Act of 2006 on all aspects of charitable gift planning. As with the first edition, this is a truly practice-focused book that provides clear and insightful explanations of all relevant tax law, financial considerations, drafting guidelines, and forms for practitioners interested in planning for clients' charitable giving needs as part of a comprehensive estate and financial plan.

This completely updated and revised edition contains important updates indicated throughout the text that are occasioned by the Act. In addition to changes wrought by these legislative enactments, the second edition contains updated information that reflects new court opinions and rulings by the Internal Revenue Service. The new edition now also includes tables reflecting the Code Sections, Treasury Regulations, and IRS rulings cited in this text, making it even more useful as both a practice and research tool. As before, it includes a valuable CD-ROM containing the book's forms in a downloadable format.

Comprehensive in its coverage, Charitable Gift Planning begins with the income tax rules and the gift and estate tax deduction, the foundation of all charitable giving. It explains in detail the rules governing two key kinds of trusts: charitable remainder trusts and charitable lead trusts, examining the pros and cons of each and when each trust is most useful. Further discussion covers planning options available, transactions involving diverse property, and trustee issues.

Both technical and practical in format, the book thoroughly explains the rules and requirements for using these tools in estate planning. Because calculations form a considerable part of a planning practice, it includes relevant flow-charts, spreadsheets and calculations to explain numerically and visually how these concepts work. At the same time, Charitable Gift Planning features many useful practice pointers to answer common questions that arise in charitable planning. It also includes numerous case studies that explain how to use these tools in a variety of planning situations. The appendix features sample forms and other materials useful in assisting clients with their charitable planning needs, including gift annuity tables and drafting tools.

Among the topics covered in Charitable Gift Planning are:

• How to make basic charitable gifts with retirement plans and IRAs
• Planning options available with charitable remainder trusts
• Using private foundations and supporting organizations to maximize donor control
• Using a family business as a source for a donor to make charitable gifts
• "Grantor" and "super-grantor" lead trusts
• Terminating charitable remainder trusts

Eastern Michigan University receives $2.2 million gift from estate of Jean Noble Parsons

The following announcement is from EMU receives largest estate gift in school history, Feb. 5, 2008:

Eastern Michigan University has received $2.2 million from the trust of renown sculptor and potter Jean Noble Parsons (1929-2000).

The estate gift is the largest of its kind in the history of EMU. * * *

The trust includes $1.75 million in cash and $489,000 in property. The Parsons’ trustees solicited proposals following her death to establish a center in her name.

EMU will use the gift to establish the Jean Noble Parsons Center for the Study of Art and Science on 86 wooded acres near Traverse City and Interlochen. Programming for the center will maintain the natural state of the land and will be designed to foster interdisciplinary exchanges between artists and scientists.

According to the trust, Parsons outlined five activities to be accomplished with the money:

• establishment of a research center and wildlife sanctuary,
• an integrated artistic and scientific program for graduate students,
• use of the dwelling and property for intellectual discussion by researchers, professors and scientists,
• nature walks for observation and identification of flora and fauna,
• and public seminars on a range of artistic, environmental and spiritual topics.

More on Millionaire Growth

Earlier on this blog, I reported the despite what some people deem a time of economic downturn, it appears that more individuals then ever are being financially successful.

Here is additional substantiation from Nicholas Fang, There are 77,000 S'porean millionaires, Straitstimes.com, June 25, 2008:

The number of wealthy Singaporeans, defined as those with net assets of at least US$1 million, swelled by 15.3 per cent last year to 77,000, or 1.7 per cent of the population.

This surge in millionaire population puts Singapore sixth in the world, in terms of growth of high net worth individuals * * *.

The report revealed that the sharpest gains were recorded in emerging market powerhouses India, China and Brazil, reflecting the rising clout of emerging market countries on the global financial stage.

It said assets held overall by the world's millionaires soared to US$40.7 trillion (S$55.6 trillion) last year from 2006, with the average exceeding US$4.0 million for the first time.

See also Sam Zuckerman, Ranks of Millioniaires Still Swelling, SFGate.com, June 25, 2008:

In the Bay Area, 123,621 households had $1 million or more in financial assets in 2007, up 10.8 percent from the year before, according to Claritas, the market research firm that helped analyze data for the report. When total net worth is considered, including the value of homes and other real assets minus debt, 163,124 households in the Bay Area had $1 million or more. * * *

Of course, the value of a million dollars has been eroded by inflation. It no longer signifies great wealth and doesn't have the cachet it once had. But it is still a benchmark that indicates a significant level of affluence and a high standard of living.

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

The Daniel Gross Story Continues

Several years ago, Daniel Gross was held against his will in a Connecticut nursing home for over 10 months because he become ill in Connecticut even though he was a New York resident.  Judge Joseph Gormley determined that this was "a terrible miscarriage of justice" and allowed Daniel to return home.  Daniel went back to his Long Island home and passed away in October 2007 at age 86.

The following "rest of the story" is from Rick Green, Probate Injustice Returns, Courant.com, June 24, 2008:

Gross has become a symbol for families across the country who believe the rights of the elderly and infirm are being violated by overzealous courts eager to appoint conservators and lawyers who earn fat paychecks "representing" the unfortunate.

Now, in a scene from a horror tale, Gross' former court-appointed conservator, Kathleen Donovan, has returned to Waterbury Probate Court — the place Superior Court Judge Gormley said had no jurisdiction and no business inserting itself into this old man's life. She is seeking $39,195 from Gross' estate for her work keeping this elderly gentleman locked up in a local nursing home. That consists of 261.3 hours of work at $150 per hour.

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.

Where should older or disabled persons live?

Lawrence A. Frolik (Professor of Law, University of Pittsburgh School of Law) has recently published his book entitled Residence Options for Older and Disabled Clients.

Here is a description of this book:

With the recent census figures reporting that more than 35 million Americans are age 65 and older and the expected prolonged life expectancy, the need for appropriate housing is inevitable. Residence Options for Older and Disabled Clients is a new book that provides comprehensive guidance on the many different types of housing available for aging and disabled individuals. It starts with the most independent type of living, proceeds through transitional forms of housing and ends with an in-depth discussion of medically-assisted housing.

It is crucial for attorneys of aging and disabled clients to be adequately informed about various housing options as there are many legal consequences involved with selling their existing home and joining a heavily-regulated, planned community. Attorneys have the opportunity to offer their clients important practical advice about age restricted housing and deed restrictions and thereby steer them away from potential problems. This guide provides you with guidance and answers critical questions to help you counsel your clients.

Housing options include:

• Condominiums and cooperatives
• Planned communities and homeowner associations
• Continuing care retirement communities 
• Assisted living
• Group homes for the disabled
• Nursing homes
• Hospice care
• And much more.

Whether you’re a lawyer, financial planner, geriatric case manager or a caregiver, this book will expand your knowledge of the various types of housing and offers you assistance in selecting the most appropriate place for an individual’s specific needs.

Planning for Retirement

Marcia Chadwick Holt (attorney, Davis Graham & Stubbs, LLP, Denver, Colorado) has recently published her book entitled Estate Planning for Retirement.

Here is a description of this book:

In her new book, “Estate Planning for Retirement,” author Marcia Chadwick Holt provides the basic framework from which a practitioner can give appropriate advice and a taxpayer can make appropriate decisions. She thoroughly explains the federal tax law and substantive law, state statutes and common law, and the preemption of state law by ERISA.

While the law and regulations are complicated, this book is easy to read and understand. It will help you:

• Plan for stretching out distributions and minimizing taxes.
• Understand how to use a variety of IRAs.
• Avoid prohibited transactions.
• Help your retired clients meet their goals.
• Maximize retirement benefits for plan participants and their families.
• Explain the Social Security rules to your clients.

ALSO INCLUDES: A wealth of examples, practice pointers, comparison tables, and lists of frequently asked questions!

Neil Entwistle convicted of double murder

Earlier on this blog, I reported on the likely beginning of a slayer case in which Neil Entwistle was accused of murdering his wife and daughter.  An "interesting" thing about this case was the recent revelation that four days before the murders, Neil did a Google search for the phrase "how to kill with a knife."

On June 25, 2008, a jury found Neil guilty of the two murders.  According to Franci R. Ellement, John R. Ellement, & Andrew Ryan, Jury convicts Entwistle of double murder, BostonGlobe.com, June 25, 2008:

A jury took less than two days to convict Neil Entwistle of murdering his wife and infant daughter, rejecting the defense's theory that the young mother shot her 9-month-old before committing suicide. * * *

Entwistle will be formally sentenced Thursday at 10 a.m. First-degree murder carries a mandatory sentence of life in prison without the possibility of parole and requires an automatic review by the Supreme Judicial Court. * * *

The defense did not call a single witness to testify and instead tried to exploit what it called missteps by police and pick apart the prosecution's case, which was built largely on circumstantial evidence.

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.

A deed designating the trust as the grantee is sufficient to pass legal title to the trustee

Prior state law provided that a deed that simply added the words “trustee” or “as trustee” to the name of the grantee conveyed to the grantee a fee simple estate unless the contrary intention appeared on the face of the conveyance, or the beneficiaries or nature and purpose of the trust were set forth in the deed, or the declaration of trust was on file in the land records.

In Raborn v. Menotte, 974 So. 2d 328 (Fla. 2008), the court held that a deed which identifies the grantor as the creator of and the grantee as trustee of a named trust shows sufficient “contrary intention” and grants legal title as trustee to the grantee.

Settlor has standing to seek reformation

In Bilafer v. Bilafer, 73 Cal. Rptr. 3d 880 (Cal. Ct. App.), the court held that the settlor of an irrevocable trust of which the settlor was neither a beneficiary or trustee has standing under the common law to petition the appropriate court for reformation of the trust on the basis of drafting errors that defeated his intent in creating the trust.

Reducing Inheritance Battles

The following excerpts are from Sarah Jio, Inheritance battles -- how to avoid them, CNN.com, June 23, 2008:

Arguments over family heirlooms and other belongings from a parent's estate can disrupt even the closest-knit families. * * *

When families fight over material possessions, says Elinor Robin, a family therapist and mediator in Boca Raton, Florida, it's usually not about the money. "It's typically about... how we feel valued or devalued, dismissed, discounted, disenfranchised and disrespected in relation to the situation." * * *

Even without sibling rivalry to contend with, an only child may find giving up treasured family artifacts, especially those imbued with childhood memories, to be extraordinarily difficult. * * *

Here are some hints for reducing the chance of conflict:

Make sure there's a will. "My mother died without a will," says Bredahl. "Get a will, and consult an outside lawyer, executor or estate administrator the first thing upon a family member's death. Don't wait until things disintegrate."

Discuss before death. Discuss your intentions about family heirlooms with your parents and siblings before a parent passes away, says Tessina. Or, do it in the company of an arbiter such as a close family friend, a priest or pastor, or a family mediator.

"Jointly go through the possessions, with each person choosing in turn," she adds. "The arbiter makes a list of who chose what, and then people are given a chance to trade or re-negotiate, as long as the process remains calm and reasonable."

Use the sticker method. If heirlooms are in question, all siblings should view them together, says David Woodburn, an attorney who specializes in family-estate issues with Trusts and Estates Practice Group in Akron, Ohio. "Each child is given a set of colored stickers," he says. "Then they draw straws, which sets an order for picking items, and then proceed to place their respective stickers on the items they want. It sounds a little tacky, but has been extremely effective."

Hire a professional. "Do not attempt to save money by dividing property amongst yourselves, no matter how good your relationship is with your family," says Bredahl. "A [neutral third party] is much more useful in the beginning when relations are not yet strained."

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.

Number of millionaires continues to grow

Despite what some people deem a time of economic downturn, it appears that more individuals then ever are being financially successful.

Here are some of the key findings from a report issued by Merrill Lynch and the Capgemini Group:

• Over 10 million people are millionaires, the highest number in history.
• Overall combined wealth of the millionaires increased by 9% from the previous year.
• Average wealth, not including homes, exceeded $4 million.
• The countries with the highest rate of growth include India, China, and Brazil.
• The United States still has the highest number of millionaires (one-third of millionaires live in the United States)
• The number of superrich ($30 million or more) also increased by 9%.

For more information, see Candice Choi, World now has 10 million millionaires, report says, CNN.com, June 24, 2008.

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

How to make wealth healthy

Gerald Le Van has recently published his book entitled Healthy Wealth in Families. 

Here is a description of this book:

Inevitably, shared wealth will have a profound effect on family relationships. Families who are "joined at the wallet" encounter rare opportunities and dark hazards. Gerald Le Van's new book, "Healthy Wealth in Families" offers guideposts and warning signs to families searching for happiness and purpose in the midst of their prosperity.

The Estate Tax--Presidential Candidates Interface

One of the factors which you should consider in deciding on which candidate for President of the United States to support, is that candidate's view on taxation.

With respect to the estate tax, Sen. Obama and Sen. McCain have very different approaches.

The following summary is from Tom Herman, Your Tax Bill: How McCain, Obama Differ, Wall St. J., June 18, 2001, at D1:

Neither candidate wants to kill the estate tax permanently, as President Bush has proposed. Instead, both favor a compromise, but Sen. McCain's plan would be far more beneficial for wealthy heirs than the Obama plan.

Under current law, the federal estate-tax exemption this year is $2 million, and the top rate is 45%. (Transfers from one spouse to the other typically are tax-free.) Next year, that exclusion is set to rise to $3.5 million, with the rate remaining at 45%. In 2010, the federal estate tax is scheduled to disappear completely, only to return again in 2011 with an exclusion of $1 million.

Sen. McCain proposes raising the exclusion to $5 million and cutting the tax rate to 15%. Sen. Obama proposes a $3.5 million exclusion while keeping the top rate at 45%. In either case, the basic strategy is the same: If you're wealthy and care about how much your heirs get, make sure to keep breathing at least through the end of this year to take advantage of 2009's higher exclusion.

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