Wills, Trusts & Estates Prof Blog

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

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Saturday, September 22, 2012

Victims of Conservatorship Abuse in Tennessee Fight Back

Elderly peopleAs I have previously discussed, many people have made allegations of conservatorship abuse in Tennessee, including Jewell Tinnon and Danny Tate. Now these individuals are fighting back against the injustice that was done to them. Both Ms. Tinnon and Mr. Tate testified at a hearing about their individual conservatorship stories. Both explained how they were wrongly stripped of their possessions, even after they had shown the court that they did not lack the mental capacity to take care of themselves. Ms. Tinnon explained how all of her assets were sold. Mr. Tate testified that in the past week the last major asset that he owned was purchased by one of the lawyers that worked on his conservatorship. Both Ms. Tinnon and Mr. Tate were placed in conservatorship by Judge Randy Kennedy in Davidson County. However, the abuse in Tennessee is not limited to that county. There are also reported incidents in Wilson and Stewart County.

Retired General Session Judge Barry told the hearing that the problem with conservatorships in Tennessee is that judges are not following the law. He argued that if there was an outside source that could  monitor the situation, this might ensure that the law will be enforced.

See Walter F. Roche Jr., Witnesses' Tales Reveal Flaws in TN's Conservatorship Law, The Tennessean, Sept. 21, 2012.

September 22, 2012 in Current Affairs, Current Events, Guardianship | Permalink | Comments (0) | TrackBack (0)

Happy First Day of Autumn

Autumn_happy_2
Happy First Day of Fall!!

September 22, 2012 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Friday, September 21, 2012

Spousal Limited Access Trusts

Unknown-2Spousal Limited Access Trusts (SLATs) can be set-up for the benefit of you and your spouse.  You can set the trust up to benefit your spouse upon your death and then when your spouse dies, the remainder of the assets in the trust pass to the rest of the family tax-free.  The best part is, you and your spouse can benefit from the set-aside funds while you're both living. 

In order to benefit while living, you would make a gift of cash or assets to an irrevocable trust, instructing that the trustee distributes income and principal to your spouse while he or she lives.  This income and principal distribution can benefit you as well, and these assets that you put in the irrevocable trust are not part of your estate for estate tax purposes. 

There are some pitfalls in creating SLATs, so to keep the IRS from questioning the gift, you should be sure that you carefully draft the trust to prevent the gifted assets from being included in your taxable estate after death, creating an unexpected tax consequence for your heirs.  To achieve this, it must be clear that you relinquish control over the trust assets and that you receive no direct benefit from the trust.  

Additionally, it is important to consider how you will fund your SLAT. You should fund it with assets that belong to you alone--not assets jointly owned by you and your spouse. You should also avoid signs of collaboration.  If you and your spouse create SLATs for eachother, write the trusts differently.  

Divorce and death can complicate the concept of SLATs because the gift trust is irrevocable.  Even upon a divorce, your spouse would get the trust and all distributions. One way to get around this is to write in the spousal definition in the trust as the person you are currently married to as opposed to naming a specific person. 

If one spouse dies before the other, benefits pass to the next generation.  This could be problematic if the surviving spouse still needs access to the trust assets to maintain the survivor's lifestyle. 

See Richard C. Morais, SLATS: A Spousal Shelter With Benefits, Barron's, Sept. 20, 2012. 

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

September 21, 2012 in Trusts | Permalink | Comments (0) | TrackBack (0)

CLE About Working Effectively With Muslim Clients

Images-2On Thursday, September 27, 2012, Minnesota Lawyers Mutual is hosting a webcast entitled MLM: Working Effectively With Muslim Clients. The webcast will be from 9 a.m. to 10 a.m. central time.  A brief description of the CLE is below: 

Legal practitioners and others need to understand the issues facing Muslim clients when working with the legal community in order to be effective advocates. This presentation is designed to teach legal practitioners basic information about Islam and Muslims. The presentation covers basic Islamic beliefs, common misconceptions, legal issues facing the Muslim community, local and worldwide demographics, cultural educational challenges, and practical tips for assisting your Muslim clients. It is intended to help practitioners better serve their clients by providing a deeper understanding of Muslim religious practices.

Please click here for more information. 

September 21, 2012 in Conferences & CLE | Permalink | Comments (0) | TrackBack (0)

Former Attorney Set to Plead Guilty To Taking Clients' Money

Images-1Kenneth Hoesch is a former Zeeland attorney who is scheduled to plead guilty to charges of mail fraud, and making a false statement on a tax return.  These schemings enabled Hoesch to steal about $900,000 in clients' estate planning trusts. Hoesch was recently found competent to stand trial and both sides agree that $835,000 should be paid in restitution. 

See John Agar, Former Zeeland Attorney To Plead in $900,000 Scheme Targeting Clients' Funds, M Live, Sept. 21, 2012. 

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) and Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

September 21, 2012 in Current Events | Permalink | Comments (0) | TrackBack (0)

Article on Individual and Societal Responsibility

Fineman_for_web_2011Martha Albertson Fineman (Robert W. Woodruff Professor of Law, Emory University) recently published her article entitled "Elderly" As Vulnerable: Rethinking the Nature of Individual and Societal Responsibility, 20 Elder L.J. 71 (2012).  The introduction to the article is below: 

 

The vulnerability of our embodied beings and the messy dependency that often comes in the wake of physical or psychological needs cannot be ignored throughout any individual life and must be central to theories about what constitutes a just and responsive state. The concept of vulnerability reflects the fact that we all are born, live, and die within a fragile materiality that renders all of us constantly susceptible to destructive external forces and internal disintegration.
Vulnerability should not be equated with harm any more than age inevitably means loss of capacity. Properly understood, vulnerability is generative and presents opportunities for innovation and growth, as well as creativity and fulfillment. Human beings are vulnerable because as embodied and vulnerable beings, we experience feelings such as love, respect, curiosity, amusement, and desire that make us reach out to others, form relationships, and build institutions. Both the negative and the positive possibilities inherent in vulnerability recognize the inescapable interrelationship and interdependence that mark human existence.
The state and the societal institutions vulnerability brings into existence through law collectively play an important role in creating opportunities and options for addressing human vulnerability. Together and independently institutional systems, such as those of education, finance, and health, provide resources or assets that give individuals resilience in the face of our shared vulnerability. A responsive state must ensure that its institutions provide meaningful access and opportunity to accumulate resources across the life-course and be vigilant that some individuals or groups of individuals are not unduly privileged or disadvantaged.

September 21, 2012 in Articles, Elder Law | Permalink | Comments (0) | TrackBack (0)

A Modern Day Oedipus Problem

MarriageA woman recently received devastating news about her family. Valerie Spruill learned that the man she called her husband was her actually biological father too. What makes this particularly story sad and troubling is that she only found out because a member of her own family told her. She discovered the truth about six years after her husband's death. Spruill confirmed the allegations made by other family members through a DNA test. She obtained several strands of her late-husband's hair to run the DNA test.

Spruill believes that she has suffered from an assortment of medical problems, including diabetes and two stokes, as a result of learning the family secret. Now, Ms. Spruill is left to sort through a battery of questions about her life, which she wants to pen in a story that she hopes to publish one day. She gives credit to God for getting her through this difficult time in her life.

See Chelsea J. Carter, Secret Revealed: Ohio Woman Unknowingly Married Father, CNN, Sept. 21, 2012.

September 21, 2012 in Current Events | Permalink | Comments (0) | TrackBack (0)

Brooke Astor's Bank Account Resurfaces

Brooke AstorAs I have previously discussed, Brooke Astor's estate is no stranger to controversy or legal battles. Recently, someone discovered that Brooke Astor's estate has two abandoned accounts at Citibank. It appears as if both of the accounts "were addressed to the attention of her son, Anthony D. Marshall." A bank, such as Citibank, is required to advertise accounts that have more than $50 within the account. Based upon the person in this case, even her grandson does not believe that there is only $50 in the account. If no one claims the money within the account, then the money goes ot the state comptroller's office, where the state comptroller attempts to locate the owner. When the amount of money in the accounts is determined, it will be divided according to the settlement agreement that was agreed upon in March of this year.

See Russ Buettner, Abandoned Bank Accounts of Brooke Astor's Surface, Their Value a Secret, New York Times, Sept. 7, 2012.

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

September 21, 2012 in Current Events, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

The Problem With Our Transplant Allocation System

Medical CaduceusThere is no mystery that many people who are on a transplant do not get the organs list that they need to survive. According to the New York Times, “4,720 people died while waiting for kidney transplants in the United States.” What may come as a surprise is that a great number of kidneys were discarded, some 2,600, without ever being given to a patient that might need the kidney. The reason for this was that many of them were found to not be viable. However, that is not to say that these kidneys could not have been transferred. Many experts believe that there is a better system for matching organs and the people who need them at the right time.

According to the New York Times, “[t]he current process is made inefficient, they say, by an outdated computer matching program, stifling government oversight, the overreliance by doctors on inconclusive tests and even federal laws against age discrimination.” At the moment, the Organ Procurement and Transplantation Network govern the system, which is managed by the United Network for Organ Sharing. In addition, there are medical reasons that a doctor might discard an organ like a kidney. To determine whether a kidney meets the standard for transplants, the doctors biopsy a piece of the organ and run tests to determine whether it is viable. Unfortunately, this process has flaws and doctors discard organs that might be good for transplant. The scrutiny of officials from the Organ Procurement and Transplantation Network can also affect whether doctors throw away viable organs.

In an effort to increase the amount of people receiving viable organs, the United Network for Organ Sharing has established a committee that has proposes a system that rates the kidneys of donors and gives the best kidneys to those who expect to live the longest. However, the system is facially discriminatory because it discriminates on the basis of age. Under this system, the youngest recipients are more likely to receive organs than their older counterpart.

See Kevin Sack, Transplant Experts Blame Allocation System for Discarding Kidneys, New York Times, Sept. 19, 2012. 

September 21, 2012 in Current Affairs, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Biggest Moon Rock Has Been Auctioned

Moon RocksThe Dar Al Gani has been sold at auction, and expects to fetch about $340,000. The stone itself is rare because it is a fourth largest moon rock to be auctioned to the public. The value of the rocks is based upon several different factors. The value of the rocks can be based upon where the rocks were found and by who or what found them. For example, rocks found by one of the robotic probes are often found to be more valuable than the lunar meteorites. The reason that these rocks tend to fetch a higher price is because they have historical value. This rock was not found by one of the probes, it was found on the Earth and was brought here by natural forces. 

See Clara Moskowitz, Biggest Moon Rock Ever Auctioned, Dar Al Gani 1058, Couth Fetch $380,000, The Huffington Post, Sept. 18, 2012.

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

September 21, 2012 in Current Events | Permalink | Comments (1) | TrackBack (0)