Wills, Trusts & Estates Prof Blog

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

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Saturday, October 13, 2012

Reminder: CLE on Medicaid Planning

6a00d8341bfae553ef017d3c6309d8970c-100wiOn Wednesday, October 17, 2012, the ALI-ABA is hosting a CLE entitled Practical Medicaid Planning: Advising Your Clients.  The CLE will be from 1:00 p.m. to 2:30 p.m. Eastern and is offered via telephone seminar or audio webcast.  You will learn the following: 

This 90 minute audio-only program will explore various topics related to Medicaid and planning for Medicaid, including (but not limited to):

  • Significance of payment of debts and expenses
  • The community spouse resource allowance
  • Transfer rules
  • Distributions from inter-vivos trusts
  • Tax issues in elder law
  • Why you must read Medicaid not as a trust and estates lawyer but from the point of view of public benefits.

Though primarily designed for estate planning attorneys, tax lawyers and other professionals handling Medicaid issues will benefit from this program, which is co-chaired by Mark Levin of the Law Office of Mark Levin in Roseland, New Jersey, and Leonard Pasculli of Hollander, Strelzik, Pasculli, et al. in Newton, New Jersey.

Please click here for more information. 

October 13, 2012 in Conferences & CLE, Disability Planning - Health Care | Permalink | Comments (0) | TrackBack (0)

Women in Botswana Now Have the Right To Inherit

Images-2Judge Key Dingake of the Botswana High Court recently ruled that women are entitled to equal inheritance rights with men.  This landmark ruling paves the way for challenging the other unfair laws in the region that favor men. The judge reasoned that  it is time for the law to reflect modern times and for justices to assist in ridding the modern-day society of discrimination against gender.  

Human rights campaigners said that this ruling would prompt challenges to other customary laws that similarly discriminate against women.  Botswana is an example for the region and has produced some of Africa's most celebrated women.  However, it still has a dual legal system that many people have been reluctant to tamper with.

See Women Granted Inheritance Rights, The Sydney Morning Herald, Oct. 14, 2012.  

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

October 13, 2012 in Current Events, Estate Planning - Generally | Permalink | Comments (1) | TrackBack (0)

Six Things To Complete Before You Die

WillsIn ode to Estate Planning Awareness Week, which occurs this upcoming week from October 15 to October 22, let's review the top six things that person might want to consider doing before he or she passes away.

  1. A person might want to take some time out of each day to enjoy his or her life. In other words, a person might want to live each day like it is his or her last. 
  2. A person might want to make a "bucket list" to determine what that person wants to do before he or she dies.
  3. In terms of estate planning documents, a person might want to consider talking to a lawyer about signing a health care proxy even if that person is young. In fact, most young people who have just turned 18-years-old might want to strongly consider signing the document to ensure that the person they want is able to make health care decisions on his or her behalf. This also applies to a durable power of attorney.
  4. Contrary to popular belief, it is a good idea for every person to have will or a revocable trust, even if the estate is not that large. If a person dies without one of these documents, then that person's property will be distributed based upon the intestacy laws of the state where the person lived. A person might have no problems with this system, or they might completely disagree with the distribution system. Even if that person has no problem with the system, a person might still want a will to distribute his or her property to someone else who might need their property. For example, the intestacy laws might want to give all of a person's property to his son. Now a person might not have any problems with this, but he might want to give his car to his mother instead. A person would need a will to do this. There are other reasons why a person might want to draft a will. For example, if the person has minor children then that person might want to consider using a will to appoint a guardian.
  5. A person might also want to consider reviewing and possibly updating his or her beneficiary designation forms.
  6. While I believe that this could be an annex of the first principle, it probably deserves its own spot. A person should always tell their friends and family how much they care about them. A person should do this before they cannot do it anymore.

See Deborah Jacobs, Six Things To Do Before You Die, Forbes, Oct. 12, 2012.

October 13, 2012 in Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Change at the IRS

IRS 2Recently, the Commissioner of the IRS has decided to step down this coming November. On November 9, 2012, Commissioner Doug Shulman will leave his position on the last day of his term. Deputy Commissioner for Service and Enforcement Steven T. Miller, a 25-year veteran of the IRS, will replace the old commissioner.

For Miller, the period following his entry into the commissioner's position will be challenging. The new commissioner is entering in a period of uncertainty about the estate tax and will be the person that will lead the IRS in its implementation of the taxes created by Obamacare. In fact, Obamacare has 47 new provisions. Some of these provisions have already come into effect, and some of these provisions will come into effect in the next 18 months. This might become a problem because it might divert resources that the IRS would have used for other efforts and focus them on implementing the health care law taxes. Regardless of the difficulty, Commissioner Shulman stated that it has been his privilege to serve the American people in the capacity of the Commissioner of the IRS.

See Leroy Baker, Change At The Top For Embattled IRS, LowTax: Global Tax & Business Portal, Oct. 11, 2012.

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

October 13, 2012 in Current Events, Income Tax | Permalink | Comments (0) | TrackBack (0)

Friday, October 12, 2012

Janet Jackson's Lawyer Responds to Vanity Fair Allegations

Images-1I previously blogged about an article in Vanity Fair that alleged Janet Jackson held up her brother's burial until the $40,000 deposit she put down to secure a place for him at Forest Lawn Memorial Park was repaid.

Recently, her lawyer has responded to that story, claiming that the article was "'false and defamatory.'"  Her lawyer, Blair G. Brown, says Jackson never delayed the funeral and actually even paid for the funeral. Brown also demands that Vanity Fair retract its statement.  

Vanity Fair responded that it stands by its original story aside from the minor detail that the amount of the deposit was actually $49,000 as opposed to $40,000.  Vanity Fair plans to make that adjustment. 

See Seth Abramovitch, Janet Jackson's Lawyer Responds to Vanity Fair Claims She Delayed Her Brother's Funeral, The Hollywood Reporter, Oct. 9. 2012. 

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

October 12, 2012 in Current Events | Permalink | Comments (1) | TrackBack (0)

Man Pleads Guilty To Two Felony Counts For Allegedly Falsifying Tax Returns of the Deceased

ImagesOn Wednesday, Adrian Espiridion Lugo pleaded guilty to two felony counts, including conspiracy to defraud the government through false claims and aggravated identity theft.  

A federal Grand Jury in Phoenix indicted him of 104 counts in January.  He operated a tax preparation business called Uncle Sams Tax Service.  He allegedly used stolen names and Social Security numbers of deceased individuals from California and then filed false tax returns fraudulently claiming tax refunds in the name of the deceased.  Prosecutors posit that Lugo would have the fraudulent refunds delivered to him or deposited into accounts he controlled.  Lugo allegedly filed approximately 34 income tax returns and claimed over $279,000 in feeral tax refund payments.  

Lugo faces up to five years in prison for the false claims count and two years for the identity theft count. If convicted, he is also subject to fine and mandatory restitution.  Sentencing is scheduled for January in Phoenix.  

See Michael Cohn, Uncle Sams Tax Service Founder Pleads Guilty to Identity Theft, Oct. 11, 2012.  

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

October 12, 2012 in Current Events, Elder Law | Permalink | Comments (0) | TrackBack (0)

Michigan Is Soon to Be Among the Best 10 States For Raising an Autistic Child

Images-24Michigan's Lt. Gov. Brian Calley signed a bipartisan package of bills in April that requires insurers to offer coverage for autism treatment and diagnosis. The insurance mandate takes effect on Monday, but there is a grace period that allows insurers to start programs at the start of their next plan year.

State regulators launched a website for the Autism Coverage Reimbursement Program.  The fund received a $15 million appropriation for its first year and will reimburse eligible health insurance companies and third-party administrators for paid claims related to autism treatment and diagnosis. Future funding will depend on annual appropriations. 

The Program will accept claims for services provided on or after Oct. 15.  The fund will reimburse insurers in the order that their claims are approved, and reimbursements may not be paid if the fund runs out of money.  

See Melissa Anders, Michigan's Autism Insurance Mandate Kicks in On Monday, MLive, Oct. 12, 2012. 

For more information on planning for autistic children, please see Katherine Owen's article referenced here

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

October 12, 2012 in Disability Planning - Health Care | Permalink | Comments (0) | TrackBack (0)

Disbarred Attorney Set to go to Jail For Stealing From an Estate

Estate DisputeRoger J. Niemel, a disbarred North Tonawanda attorney, has accepted a two-year sentence for "third-degree grand larceny and second-degree criminal possession of a forged instrument." Mr. Niemel agreed to the sentence through a plea bargain that he accepted. He committed the alleged thefts from 2005 to 2008 by stealing from the estate of Chester Kawalec. However, this was not the first time that Mr. Niemel has committed such an act. In 2011, he previously lost his law license for this exact crime. In March of that year, he misappropriated $20,500 from a Grand Island woman. In the course of the act, Niemel also violated a number of rules from the code of professional conduct.

In this instance, Mr. Niemel wrote a number of checks to himself that range from as little as $500 to as much as $5000. When confronted about why he committed this offense, Mr. Niemel tried to blame his co-executor and one of the beneficiaries, Marcia Poirer-DeNapoli. Mr. Niemel claimed that she would freely give him the money for the estate. He further claimed that he needed to pay the bills of the estate. The assistant district attorney working the case argued that even if we were to accept Mr. Niemel's argument the estate did not have that many bills to equal the amount that was taken from the estate.

See Thomas Prohaska, Disbarred NT Lawyer Headed to Jail For Looting Estate, The Buffalo News, Oct. 6, 2012.

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

October 12, 2012 in Current Events, Malpractice, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Illinois -- How to Conduct a Will Execution Ceremony

Illinois2Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University) and Eugene Kozob (Illinois attorney) have recently posted on SSRN their article entitled How to Conduct an Illinois Will Execution, Trusts & Estates (Illinois State Bar Association), Oct. 2012, at 1.  Here is the abstract of their article:

One of the most crucial stages of a client’s estate plan is the will execution ceremony — the point at which the client memorializes his or her desires regarding at-death distribution of property. Unfortunately, attorneys may handle this key event in a casual or sloppy fashion. There are even reports of attorneys mailing or hand-delivering unsigned wills to clients along with will execution instructions. Some attorneys allow law clerks or paralegals to supervise a will execution ceremony. This practice is questionable not only because it raises the likelihood of error, but also because the delegation of responsibility may violate the rules of professional conduct proscribing the aiding of a non-lawyer in the practice of law. An unprofessional or unsupervised ceremony may provide the necessary ammunition for a will contestant successfully to challenge a will.

Since the earliest recognition of the power of testation, some type of ceremony has accompanied the exercise of that power. Will ceremonies help demonstrate that the testator was not acting in a casual, haphazard, whimsical, or capricious manner by furnishing proof that the testator deliberated about testamentary desires and had a fixed purpose in mind when making the will. The ceremonies also provide evidence that the will was actually made by the testator, by impressing the act on the minds of witnesses.

A proper ceremony, coupled with sensitive and tactful counseling by the attorney during the entire estate planning process, may make it easier for clients to cope with the inevitability of death. Unfortunately, attorneys have been accused of showing “little concern about the therapeutic counseling that goes on in an ‘estate planning’ client’s experience.” Thomas Shaffer, The “Estate Planning” Counselor and Values Destroyed by Death, 55 Iowa L. Rev. 376, 376 (1969). You need to remember that many clients make only one will during the client’s entire life and that the psychological effects of confronting death are strong. Even if you conduct scores of will ceremonies each year, you must not lose sight of the client’s emotions and the psychological benefits that may be obtained through client interviews and will ceremonies.

One commentator has somewhat humorously summarized the psychological benefits of the ceremony as follows:

When a client comes in to do something about his estate planning problem, he wants a lot of things. He wants solace because he is thinking about the day when he will not be here. He wants approval of what he has done and what he proposes to do. And he wants something else he almost never gets — a ceremony. Now, life offers very few opportunities for high ceremony. Birth is not a very good time. It is too laborious. Marriage is handled in rather a spectacular style. Nobody has been able to do much with divorce on the ceremonial side. For death, there is a ceremony, but it is hard for a decedent to be there to enjoy it. He is the principal.

The estate planning process . . . ought to be a high ceremonial occasion because a client should be getting great intangible satisfactions about these significant decisions that he has made that were embodied in the instruments he leaves behind. Estate Planning for Human Beings, 3 U. Miami Inst. on Est. Plan. § 69.1902 (P. Heckerling ed. 1969) (statement of Dean Willard H. Pedrick, panelist).

This article suggests a comprehensive step-by-step format for a proper will execution ceremony under Illinois law that can provide economical “will insurance” for every testator.

October 12, 2012 in Articles, Wills | Permalink | Comments (0) | TrackBack (0)

Bomb Squad Called to Attorney's Office

Hand GrenadeA bomb squad was called to an attorney's office in Florida, after someone at the firm called the sheriff's office to learn what should be done about the two grenades they found in a client's home. One of the firm's clients was a World War II veteran and owned two grenades. A person who worked at the office found the grenades in the clients homes after he passed away. He decided to bring the grenades to the firm in Lake Worth, Florida. The sheriff's office contends that if anyone has a military-grade explosive device in their possession, like a grenade, then that person should contact their local authorities for help to dispose of the device.

See Martha Neil, South Florida Law Firm Calls Bomb Squad to Office to Deal With Deceased Client's Hand Grenades, ABA Journal, Oct. 10, 2012.

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

October 12, 2012 in Current Events, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)