Wills, Trusts & Estates Prof Blog

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

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Saturday, November 24, 2012

Appeals Court Rules Judge Erred In Granting A Discharge

Court FightA funeral director, Ralph Zentner, recently was convicted of overcharging clients on the caskets that he would give them for their loved one. He would provide them a cheap casket even though he charged them for the expensive caskets. He would also receive money to dispose of the ashes of loved ones, but would never complete his end of bargain. In the end, Zentner "pleaded guilty to one fraud charge involving 55 separate incidents." The judge in his case gave Zentner a conditional discharge, which means that following the completion of the condition there would no criminal conviction on his record at all. The condition was that he successfully complete his 18 month probation and make a $5000 charitable donation. 

An Appeals Court recently held that Judge Krinke at the lower court overstepped his bounds and blatantly refused to follow the court's precedent. The appeals court decided that Zentner should receive prison time for his actions and be made to pay a $5000 fine. The appeals court here ultimately made its decision because it determined that sentence that Judge Krinke gave Zentner was basically no punishment for the crime that he committed.

See Kevin Martin, Appeal Court Rules Judge Erred in Granting a Discharge to Bridge Funeral Home Director Who Swindled Clients, Calgary Sun, Nov. 22, 2012.

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

November 24, 2012 in Current Events, Death Event Planning | Permalink | Comments (0) | TrackBack (0)

Hemsley Finally Laid to Rest

Sherman HemsleyAs I have previously discussed, a court ruled that Sherman Hemsley could finally be buried and so preparation began for his military funeral. Hemsley passed away from lung cancer this past July 24, 2012. His funeral was held on November 21, 2012 in El Paso, Texas. Friends and family gathered to remember the man, and ultimately remembered him most for the role he played on The Jeffersons, George Jefferson. For a man that spent his career making people laugh, he was remembered in the much the same manner. While the people gathered at his funeral were there to mourn, they could not help but laugh at the videos of George Jefferson. He was laid to rest at Fort Bliss National Cemetery. 

See Juan Carlos Llorca, Hemsley Remembered By Friends, Family At Funeral, MySanAntonio.com, Nov. 21, 2012.

Special thanks to Laura Galvan (attorney, San Antonio, Texas) for bringing this article to my attention.

November 24, 2012 in Current Events, Wills | Permalink | Comments (0) | TrackBack (0)

Friday, November 23, 2012

Some Famous People Still Don't Plan for Their Estates

ImagesWith as many cautionary tales that circulate about the trouble that can come from dying without a will, it is a wonder that the majority of Americans still don't have an estate plan.  Many smart and successful famous people fall into this category as well.  Below is a list of several famous people and what happened to their estates: 

Four of our country's leaders died without an estate plan--Presidents Lincoln, Johnson, Grant and Garfield. Lincoln's estate took two years to settle, even though he was even a practicing attorney before he took office. 

Sonny Bono: He left his third wife to manage claims from Cher and an alleged love child.  He did not set up a will or a trust before his untimely death in a skiing accident.  

Howard Hughes: This famous businessman, aviator, and philanthropist died intestate after a handwritten will found on a church official's desk was deemed forged.  His $2.5 billion estate was split among 22 cousins after much litigation. 

James Brown: James Brown tried to leave his $100 million to a special trust to benefit poor and need y children.  He did not discuss his wishes with his family, however, and failed to update his will while he was married to his fourth wife.  These mistakes left his money in limbo and ultimately only benefited legal teams. 

Elvis Presley: Elvis Presley actually had his estate plan in order when he died.  He not only had a will but also included a testamentary trust to provide for his family long after he passed away.  Even though many unscrupulous business partners tried to exploit his fame and fortune in attacks on the estate, his finances were handled appropriately because of tools he put in place. 

See Jim Moniz, Lessons of the Rich and Famous, WealthManagement.com, Nov. 21, 2012. 

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

November 23, 2012 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

People Want A Paper Copy of their Retirement Plan

RetirementWhile the financial services lobby has pushed Congress to "allow retirement plans to send out all legally required retirement plan documents electronically, unless the participant asks for paper," respondents of a recent survey has indicated that they prefer to receive a paper copy of the retirement plan versus an electronic copy. The survey, conducted by the Social Science Research Solutions (SSRS), determined that 75% of the people that responded to survey had a preference for a paper copy versus an online version. When it came to whether the person would be more likely to save a paper copy versus an electronic copy, 73% said they were more likely to save a paper copy and 70% said they were more likely to read that copy if it were in paper. Of those surveyed, 74% said that receiving a paper copy should be the default delivery option. 

See Rebecca Perron, Paper By Choice: People of all Ages Prefer to Receive Retirement Plan Information on Paper, Nov. 15, 2012.

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

November 23, 2012 in Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

CLE on Discretionary Distributions

CLE ImageThe Illinois State Bar Association is offering a 1 MCLE Hour teleseminar entitled, Discretionary Distributions: A Practical Guide to Planning, Drafting, and Administering - A National Perspective on November 27, 2012. The keynote speaker at the event is Jeremiah W. Doyle, IVBelow is a description and highlights of the event as provided by the Illinois State Bar Association: 

One of the difficult decisions in a trust is when to make a discretionary distribution.  It is difficult for the settlor of the trust to confer that (often broad) discretion on a fiduciary.  It’s difficult for a trustee because the standards established by law or by trust documents are often vague and that vagueness leads to substantial tension with beneficiaries who want more.  It’s difficult for the planner and draftsman because the client often has an uncertain sense of what the standards for distributions should be in the first instance and client’s decision may shift over time over time.  All of these difficulties combine to make discretionary distributions a source of contention and potentially litigation and liability.  This program will provide you with a real-world guide to establishing and drafting distribution standards, and provide you tips on administration and how to avoid disputes with and among beneficiaries. 

Highlights

  • Practical guide to discretionary distributions in trusts – establishing standards and making judgments for planners, draftsmen and fiduciaries
  • Interpreting trust documents to discern objective, measurable standards for discretionary distributions
  • Statutory and common law framework for discretionary distributions
  • Understanding “HEM” – health, education and maintenance – standards and how they operate in practice
  • How discretionary distributions are treated by corporate v. individual trustees
  • Balancing the tension between income beneficiaries and beneficiaries with remainder interests

November 23, 2012 in Conferences & CLE, Trusts | Permalink | Comments (0) | TrackBack (0)

Wife Learns Husband Divorced Her Eight Years Before His Death

DivorceA woman from New York, Vivian Pitt Dowers, learned after the death of her husband, David Dowers, that he unilaterally filed for divorced eight years before his death. The move would ensure that his wife could not receive money from his pension or life insurance payout. Vivian had no idea that David had filed for divorce. She maintained that they lived happily together until his death. She only learned that he had filed for divorce after looking through his belongings. This is when she discovered that he filed for divorce in 2002. In the divorce papers, David filed for an "uncontested" split claiming that Vivian abandoned him over their mutual financial problems. He further claimed that she moved to Canarsie following thier split. He claimed that he had properly served her with the divorce papers at an address in Canarsie. In response to this discovery, Vivian obtained a lawyer fought the divorce. A court ruled that the divorce was fraudulent over the protests of David's children from a previous marriage. 

If the court would have ruled the divorce legal, then the children would have inherited everything from their father's estate, including his life insurance policy and pension money. 

See New York Woman Reportedly Learns Husband Divorced Her Eight Years Before His Death, FoxNews.com, Nov. 19, 2012.

November 23, 2012 in Current Events, Intestate Succession, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Tolkien's Estate Sues Hobbit Producers

Court FightThe estate of J.R.R. Tolkien has brought suit against the producers of the new feature film, The Hobbit. The film in production is based upon the book by Tolkien. To promote the movie, the producers released gambling games and online video games.

The estate brought suit and gave two basic arguments against the producers. First, the estate claimed that the producers violated the copyright licensed to them by the estate. Tolkien's estate claimed that the sale of the film rights to Warner Bros. "only included limited merchandising rights to use characters, places, objects and events referenced in The Lord of the Rings and The Hobbit." The estate asserted that the sale only included tangible property and did not include electronic or other intangible rights. They claim that those rights still belong to the estate. Second, the estate contended that the use of the license to promote gambling and other online games has caused "irreparable harm" to Tolkien's "'reputation and the valuable goodwill generated by his works.'" The estate is seeking $80 Million in compensatory damages and an injunction against Warner Bros.

See Alison Flood, Tolkien Estate Sues Hobbit Producers Over Video and Gambling Games, The Guardian, Nov. 20, 2012.

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

November 23, 2012 in Current Events, Estate Administration | Permalink | Comments (0) | TrackBack (0)

Thursday, November 22, 2012

Texas Attorney Receives Probation For Misappropriation of Her Family's Estates

Court FightMichelle Valicek, a recently disbarred San Antonio attorney, received probation after she pleaded no contest to a charge that she had misappropriated funds from several of her family member's estates. The prosecutor on the case, Joanne Woodruff, reported that Valicek had stolen money from the estates and used it to purchase "an expensive house, a car and piano for herself." As a result of the case, Valicek voluntarily relinquished her license to practice law. She ultimately admitted that she made some mistakes in managing her grandmother's and her grandmother's nephew's estate. 

The judge probably agreed with Valicek and sentenced her to 10 years of probation. The judge could have sentenced her to ten years in prison. Now that the case is over, there are still a lot of questions that need to be asked. The primary one is where did half a million dollars that is gone from the estate go? There were also a number of questionable deals made by Valicek. For example, a neighbor of one relative noted that Valicek sold a relative's house for much less than what it was worth. If Valicek seeks to have her license restored she will need to wait five years after her probation is complete. At that time she will be 69 years old.

See Brian Mylar, Disgraced SA Lawyer Given Probation in Estate Case, KSAT.com, Nov. 20, 2012.

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

November 22, 2012 in Estate Planning - Generally, Malpractice | Permalink | Comments (1) | TrackBack (0)

Happy Thanksgiving

Thanksgiving_5
Happy Thanksgiving!!

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

Wednesday, November 21, 2012

Survey Says: Americans Not Giving As Charitably

Unknown-3World Vision conducted their 5th annual survey on annual giving, and survey says that Americans are less likely to give a charitable gift around thanksgiving and christmas than they were last year.  

World Vision is a Washington based Christian Relief and developed organization that polled 1,012 U.S.adults and 1,000 Canadians over the age of 18.  The survey also showed that about 59% of respondents will spend less money on holiday presents as a result of the current economic climate. 

See Warren S. Hersch, World Vision Survey: Americans are Less Charitable This Year, LifeHealthPro, Nov. 20, 2012.

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