Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Monday, March 23, 2015

Tom Benson Texas Case Moved to Federal Court

Tom BensonThe Texas case involving Tom Benson has been removed from Bexar County probate court to a San Antonio federal district court on Benson's motion.

See David Hendricks, Benson Case Moved Out Of Bexar Probate Court, My San Antonio, March 20, 2015.

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

 

March 23, 2015 in Disability Planning - Property Management, Elder Law, Estate Planning - Generally, New Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2015

Helping Clients With Long-Term Care Plans

Medical expensesLong-term care woes are rapidly escalating.  Rising medical costs, improved longevity and continued low interest rates are taking a toll on an industry many clients will rely on to take care of them on old age. 

Amidst these problems planners must evolve their own strategies on how to best help clients meet their future needs.  Below are some components an advisor should address to help clients create the best possible plan:

  • Home Front.  Home equity continues to be the most significant asset for a majority of older Americans.  Yet as clients begin aging, home maintenance becomes a burden and downsizing may not have much financial benefit.  Better ideas include renting in an area where there is good elder support, moving to a continuing care community, or living with family members. 
  • Default Care.  Identify potential caretakers and create agreements long before the need arises.  Financial planners can help families negotiate the best process. 
  • Too Much Stuff.  Create a plan as to how jewelry, collections, and other valuables should be insured and protected.  Discuss car ownership and a transportation plan before a client can become a danger to themselves or others.  If a client drives less than a couple thousand miles a year, paying someone else to drive may provide cost benefits. 
  • Quality of Life Choices.  Help clients become empowered patients by documenting acceptable quality of life measures, and sharing those decisions with medical providers and everyone else who has input on their care.  In doing so, the medical system will have a defined end point of when to move away from aggressive curative care to palliative care. 

See Carolyn McClanahan, Create a Long-Term Care Plan—Without Insurance, Financial Planning, March 18, 2015.

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

March 19, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, March 13, 2015

Court Blocks Conservator's Attempt to Create SNT

Gavel2

A California appeals court recently upheld a trial court’s denial of a conservator’s petition to establish a first-party special needs trust for a 66-year-old woman, because, under federal law trusts cannot be created for the benefit of people of individuals who are ages 65 and older. 

Elaine Abbott is a professional conservator who was in charge of managing Carla Horton’s estate.  When Ms. Horton was 66, Ms. Abbott petitioned the probate court to create a trust for Ms. Horton’s benefit.  When the probate court denied the request for the aforementioned reason, Ms. Abbott appealed.  When the appeals court asked Ms. Abbott why her appeal was not moot due to Ms. Horton’s age, Ms. Abbott submitted a brief proposing that the court create a pooled trust, because pooled trusts can be funded by beneficiaries of any age.  The court denied the appeal and required her to pay all costs and legal fees since the appeal did not benefit Ms. Horton.  Estate of Horton, Cal. Ct. App., No. B253487, Jan. 15, 2015.

See Conservator Fails in Attempt to Establish SNT for 66-Year-Old, Resourceful Law, 2015.

March 13, 2015 in Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Guardianship, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, March 12, 2015

Article on Wealth Transmission System

Inheritance

Naomi Cahn (George Washington University Law School) and Amy Ziettlow (Institute of American Values) recently published an article entitled, ‘Making Things Fair’: An Empirical Study of How People Approach the Wealth Transmission System, Elder Law Journal, Vol. 22, No. 325 (2015); GWU Legal Studies Research Paper No. 2015-4; GWU Law School Public Law Research Paper No. 2015-4.  Provided below is the abstract from SSRN:

The wealth transmission process is of great concern to many senior citizens in the United States. The American wealth transmission process is designed to respect private ordering. It encourages planning as a means to formalize intent and ensure smoother property transfer at death. Most people do not plan, nor do they use, the formal probate system for distributing property, but there is little research on what the actual wealth transfer process looks like for the majority of Americans. This article challenges the contemporary trusts and estates canon by showing that the nuts and bolts of the inheritance process for many Americans takes place in a different universe outside of probate court, where the black-letter law is only a shadow. keepsakes and heirlooms assume outsized importance, and family dynamics drive outcomes. It is based on a first-ever empirical study of intergenerational care for Baby Boomers. This study shows that the formal laws of the inheritance system are largely irrelevant to how property is actually transferred at death. The contemporary trusts and estates canon focuses on the importance of planning for traditional forms of wealth in nuclear families, rather than wealth that has high emotional, but low financial, value. Alternative family structures and changing forms of wealth challenge this canon, uncovering serious shortcomings in existing means designed to encourage planning and minimize conflict. Instead, this study shows how the logic of "making things fair" has been structuring the way families navigated the distribution process and accessed the law. Consequently, this article recommends that law reform should be guided by the needs of contemporary families, where not only is wealth defined broadly but family too, through ties that are both formal and functional. This means establishing default rules that maximize planning while also protecting familial relationships.

March 12, 2015 in Articles, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 10, 2015

Think Twice About A DIY Estate Plan

DIYWhile many of us are proudly “do-it-yourselfers,” when it comes to your estate plan, seeking professional advice is often the most prudent course of action. 

A basic estate plan comprises of three core documents: a will, durable power of attorney, and an advance directive.  These all serve vital roles in your estate plan, which is why everyone needs them.  Although you can create these documents yourself (perhaps the more economical solution), you must be careful as estate planning documents that are not properly executed can cause problems for heirs, potentially making the document null and void. 

Certain circumstances may warrant or even necessitate various types of trusts, and if you think you could benefit from one, getting advice from an estate planning attorney is highly recommended.  Furthermore, basic documents will likely not provide the necessary language to handle more complex situations, such as including children from a prior marriage, children with special needs or transferring a business ownership.  Also be aware that a DIY approach may not contain the most up-to-date information, since new legislation and case law is constantly renewed.  Paying for advice could save you and your loved ones added expenses and frustrations, allowing you to focus on other DIY tasks.

See Mark A. Hebert, Money Sense: Do-It-Yourself Estate Planning Has Potential Pitfalls, New Hampshire Union Leader, March 7, 2015.

March 10, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Saturday, March 7, 2015

The Benson Family Feud

Gavel BWAs I have previously discussed, Tom Benson, owner of two New Orleans sports teams, is battling challenges against his mental competence and ability to run his business. The challenges come from his daughter, Renee Benson, and two grandchildren. The dispute centers on deeply personal issues with each side stating a contrasting view of their motivations. Renee and her children expressed in their filings that their case was motivated by a desire to protect Benson from the manipulations of his current wife. While Benson has alluded that his daughter and grandchildren were unable to get along with his wife and were creating family strife. The legal battle does not only have deeply personal roots for the Benson family, but also for the teams' fans. The lawsuit is a frequent topic on sports radio and the talk-of-town.

See Ken Belson, A Messy Family Battle for New Orleans Teams, The New York Times, March 6, 2015.

 

March 7, 2015 in Current Affairs, Current Events, Disability Planning - Property Management, Elder Law, Sports | Permalink | Comments (0) | TrackBack (0)

Friday, February 27, 2015

L'Oreal Heiress Takes Center Stage in Courtroom Battle

Loreal Heiress

Liliane Bettencourt, the 92-year-old heir to the L’Oreal cosmetics fortune, is at the center of a courtroom battle in southwestern France, where prosecutors and defense lawyers paint vastly different portraits of Ms. Bettencourt. 

The case is the universal story of any wealth family with an elderly relative who fluctuates between independence and vulnerability.  Prosecutors allege that her age, the beginnings of dementia, and a daily medical regimen of 56 pills, invited exploitation.  So when French photographer, Francois-Marie Banier gained the largest share of her fortune ($1.13 billion), eyebrows raised.  “Liliane wanted to do things for me, to ease my life,” testified the photographer, who is facing three years in prison.  Mr. Banier’s lawyers argued that Mrs. Bettencourt made calculated choices and challenged the notion she was showing signs of dementia when she gave away lavish gifts. 

Also on trial are Mr. Banier’s friend, Martin d’Orgeval, Patrice de Maistre, and Jean-Michel Normand.  The list also includes a lawyer, a businessman, the former manager of Mrs. Bettencourt’s private island and her onetime nurse, Alain Thurin.  Investigators say they believe the amount of money taken from Mrs. Bettencourt totals more than €1 billion from a variety of schemes. 

The trial ended on Wednesday, and a panel of judges said it would announce its verdict on May 28. 

See Doreen Carvajal, In Case of L’Oreal Heiress, a Private World of Wealth Becomes Public, The New York Times, Feb. 25, 2015.

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

February 27, 2015 in Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

French Criminal Case Gives Glimpse Into Life Of L’Oréal Heiress

Gavel BWThe criminal trial in France involving allegations by prosecutors that trusted advisers of the second wealthiest woman in the world exploited her mental state and schemed her out of over €1 billion, concluded Wednesday and a verdict is expected on Saturday. The prosecution accused a long list of individuals close to 92-year-old L’Oréal heiress Liliane Bettencourt, of taking advantage of her as she aged and began to develop dementia.

See Doreen Carvajal, In Case of L’Oréal Heiress, a Private World of Wealth Becomes Public, The New York Times, Feb. 25, 2015.

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

February 27, 2015 in Disability Planning - Property Management, Elder Law, New Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, February 22, 2015

Article on Dementia, Decision-Making, and the Modern (Adult) Guardianship Paradigm

Margaret Isabel HallMargaret Isabel Hall (Thompson Rivers University - Faculty of Law) recently published an article entitled, Dementia, Decision-Making, and the Modern (Adult) Guardianship Paradigm: Bentley v Maplewood Seniors Care Society, Canadian Journal of Comparative and Contemporary Law, Vol. 1 (2015). Provided below is the abstract from SSRN:

This paper considers the meaning of decision making, including substitute decision making, for persons with dementia. The paper discusses the historical development of adult guardianship, from the King’s stewardship of the property of “fools” and “lunatics” to the modern mechanisms of substitute decision making, and the relationship between substitute decision making and a particular ideal of autonomy. The paper concludes with a discussion of Bentley v. Maplewood Seniors Care Society, a case concerning the present choices of a woman with dementia, the decisions set out in the “living will” she drafted many years earlier (prior to dementia), and the decisions made by the woman’s (purported) representatives on her behalf. The case invites us to consider whether the decisions of the former, mentally capable self can ever trump the choices of the current self with dementia.

February 22, 2015 in Articles, Disability Planning - Property Management, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2015

Article on Public Guardianship for Elders

GuardianshipEleanor B. Cashmore (Boston College Law School) recently published an article entitled, Guarding the Golden Years: How Public Guardianship for Elders Can Help States Meet the Mandates of Olmstead, 55 B.C. L. Rev. 1217-1251 (2014).  Provided below is the article’s abstract:

The aging American population will quickly lead to a greater demand for long-term care and services for people who are unable to care for themselves. Some older adults may require other individuals to make informed decisions on their behalf. State guardianship programs must confront the tension of providing protections for people who are incapacitated while respecting their autonomy, particularly when making decisions involving a person’s residence. When elderly adults wish to stay in their communities and are capable of doing so, a lack of proper support may be a violation of the Americans with Disabilities Act of 1990 (“ADA”), as interpreted by the U.S. Supreme Court in 1999 in Olmstead v. L.C. ex rel. Zimring. One solution may be found in effective public guardianship programs. This Note explores the effect of Olmstead on state funding for long-term care, the implications of the Olmstead decision for guardianship, and common models of public guardianship. This Note then argues that existing public guardianship programs, if appropriately funded and held to proper standards, can help states meet the mandates of the ADA and Olmstead.

February 19, 2015 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)