Wills, Trusts & Estates Prof Blog

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

Saturday, October 20, 2018

CLE on Elder Law and Medicaid Planning: Everything You Need to Know

CLEThe National Business Institute is holding a 2- day conference entitled, Elder Law and Medicaid Planning: Everything You Need to Know, on December 4 - December 5, 2018 at the SpringHill Suites Pittsburgh Southside Works in Pittsburgh, Pennsylvania. Provided below is a description of the event.

Program Description

Everything You Need to Know to Represent Elderly Clients

Rising medical costs, health insurance changes, looming Social Security Fund depletion and baby boomers' retirement have intensified concerns over long-term care funding. Are you doing everything you can to help each client develop a comprehensive plan to ensure proper quality of life in the golden years? Join our expert faculty for two days of intensive study on planning and coordinating government benefits, and emerge better prepared to face the challenges of today's Medicaid and elder law practice. Register today!

  • Get two full days of estate planning training, so you can help clients protect assets and qualify for continuing care benefits.
  • Review medical and financial Medicaid eligibility criteria in detail.
  • Explore new continuing care options that allow for more independence.
  • Find new LTC funding sources to help clients maintain the quality of life they're used to.
  • Get solutions to real-life ethical dilemmas often faced in elder law practice.
  • Qualify eligible clients for veterans benefits and maintain your VA accreditation.
  • Plan for the tax consequences of asset transfers on spenddown requirement compliance.
  • Minimize Medicaid estate recovery through intricate understanding of the process.
  • Make better use of special needs trusts.

Who Should Attend

This basic-to-intermediate level, two-day seminar is designed for:

  • Attorneys
  • Estate and Financial Planners
  • Trust Officers
  • Paralegals
  • Accountants
  • Tax Professionals
  • Nursing Home Administrators

Course Content

DAY 1

  1. Long-Term Care Planning: Types, Cost, and Funding Options
  2. Tax Considerations
  3. Powers of Attorney
  4. Medical and End-of-Life Decisions
  5. Medicaid Benefits and Eligibility Rules
  6. Preserving Family Assets When Qualifying for Medicaid
  7. Medicaid Application Procedure and Tactics

DAY 2

  1. Obtaining Veterans Benefits
  2. Special Needs Trusts: Creation, Taxation, Administration
  3. Medicaid Post-Eligibility Issues
  4. Coordinating Benefits and Other Income Sources
  5. Liability/Litigation Issues in Elder Law
  6. Ethical Dilemmas

October 20, 2018 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, October 11, 2018

Avoid Probate Court: Head to Your Bank Instead [Texas]

BankProbate court is expensive and time intensive, and the majority of accounts have beneficiary designations that allow them to be transferred outside of probate. With a trust, more assets can be transferred outside of a courtroom. Financial institutions are called upon to help a customer determine what type of account to use and, after death of the customer, review legal documents and carry out the transfer instructions.

There are other tools that can be utilized to avoid a formal probate process, such as a small estates affidavit in Texas for estates that have less than $75,000 in assets (excluding the homestead). If there is a will and there are no unpaid debts or a need for administration, the will can be admitted to probate under a unique Texas proceeding known as a “muniment of title.” No administrator will be assigned and banks will be presented with a certified copy of of either a a small estates affidavit or an order admitting a will to probate as a muniment of title to pay out the funds in the accounts.

Power of attorney (POA) can also avoid the complex issue of a guardianship, and under a new state statute passed in 2017, POAs in Texas have expanded powers. Due to this, financial institutes also have a statutory obligations to report alleged fraud or abuse of the elderly to the proper authorities.

Employees of financial institutes are finding themselves in position to answer difficult questions and find harder solutions. They may find themselves in more of an advisor role. They may need to become more knowledgeable about statutory changes and new estate planning options, especially self-help tools, that are available to customers and train their personnel accordingly.

See David B. West, Avoid Probate Court: Head to Your Bank Instead, Lexology, October 4, 2018.

October 11, 2018 in Current Affairs, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, New Legislation, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Monday, October 8, 2018

Farmland Inheritance: Intentional Interference Judgement Upheld in Court

FarmOn July 18, 2018, in the case In the Matter of Estate of Lois B. Erickson the Iowa Court of Appeals affirmed a trial court finding of invalidity of a will based on undue influence and lack of testamentary capacity. They further held that one party was liable for tortious interference with a bequest.

Lois B. Erickson had three adult children: Wayne, who farmed, and Alan and Mary Ann who did not farm. The majority of their mother's estate consisted of farmland. Lois executed a will in 2010 that divided her estate equally among her three children. In 2011, however, a new will was drafted that gave the majority of the estate to Wayne. The other two children shortly afterwards pursued a guardianship for their mother. When Wayne learned of the impending guardianship hearing, he had his mother sign an amendment 2 days prior to the court hearing that anyone that contested the 2011 will would "reimburse my son, Wayne D. Erickson, at the rate of $1,500.00 per hour.” The physician who evaluated Lois for the guardianship hearing diagnosed her with “moderate to severe” Alzheimer’s.  The court thus ordered Alan to serve as his mother’s guardian.

The appellate court found the 2011 will was invalid based upon Wayne’s undue influence over his mother and the fact that Lois lacked testamentary capacity when she executed the will.  Regarding Lois’ testamentary capacity, the court cited Lois’ physician’s diagnosis of severe Alzheimer’s disease and the physician’s view that Lois could not make any major decisions on her own. As to undue influence, the court again cited Lois’ medical diagnosis.

The appellate court found that tortious interference does not mean the same thing as undue influence.  Tortious interference takes more:

The necessary proof in an action for intentional interference with a bequest or devise focuses on the fraud, duress, or other tortious means intentionally used by the alleged wrongdoer in depriving another from receiving from a third person an inheritance or gift.

On several occasions Wayne accused his siblings of stealing from his mother in an effort to have them disinherited. Every time the police were involved they found no evidence of theft.

See Holly M. Logan, Farmland Inheritance: Intentional Interference Judgement Upheld in Court, David Brown Law, September 4, 2018.

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

October 8, 2018 in Disability Planning - Property Management, Elder Law, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Thursday, September 27, 2018

Retirement Planning: Should an FLP be Dissolved Due to Changes in Estate Taxes?

FamilyThe increased estate tax exemption of 2018 to $11.8 million for married couples has caused the estimated number of estates that are will be liable for the tax to plummet to 1,500 from 5,000 in 2017, according to Forbes’ Ashlea Ebeling, sourcing the Joint Committee on Taxation. So what about wealthy families that may now be exempted from paying estate taxes that previously created a family limited partnership, or FLP?

It made sense to gift certain assets or property to FLPs years ago so that the tax burden to the estate would be lessened, but now the administrative costs and duties could seem too tedious. “This is a complicated area of the law, not for a practitioner new to FLPs,” explained tax attorney Marissa Dungey, partner with Withers Bergman LLP. “There are pitfalls if you move forward without proper advice.”

It’s not hard to dissolve an FLP. What’s hard is to consider all the consequences and plan for alternatives.

See Julie Jason, Retirement Planning: Should an FLP be Dissolved Due to Changes in Estate Taxes?, Tuscon.com, September 20, 2018.

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

September 27, 2018 in Current Affairs, Disability Planning - Property Management, Estate Planning - Generally, Estate Tax | Permalink | Comments (0)

Sunday, September 23, 2018

5 Ways to Know you Need a Guardianship for Mom (or Dad)

GuardianshipMany adult children see that once their parents reach a certain age, their roles may reverse. The child may be taking care of the parent more and more. But when does the child know that it is time to take the drastic step of establishing a guardianship for their mom or dad? Here are 5 ways that may indicate their your beloved parent may need a court's intervention to protect them and their assets.

  1. Refusal to sign a power of attorney.
    • If your parent either refuses to sign anything in front of them, or you have the frightening feeling that they would sign anything in front of them, a guardianship may be necessary.
  2. Real property or investments have to be sold.
    • Depending on the laws of your state, you may have to have a guardian appointed in order to sell their home or other investments if you have been appointed with power of attorney.
  3. Disagreement over nursing home.
    • If you feel that your parent would be healthier (and safer) in a nursing home and they refused, you may need to petition to be named as guardian.
  4. Medical intervention beyond the health care proxy.
    • If your parent cannot give informed consent anymore because of dementia or Alzheimer's, being appointed as a guardian can give you the authority to authorize medical treatment and certain medications.
  5. Decision-making is compromised in some areas.
    • A limited guardianship may be the best course of action if your parent retains the ability to make decisions in certain areas of their life but not in others, such as financial or investment decisions.

See Christine Fletcher, 5 Ways to Know you Need a Guardianship for Mom (or Dad), Forbes, September 13, 2018.

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

September 23, 2018 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Saturday, September 22, 2018

CLE on Estate Planning for Farmers and Ranchers

CLEThe National Business Institute is holding a conference entitled, Estate Planning for Farmers and Ranchers, on Wednesday, November 14, 2018, at the Hilton Garden Inn North Little Rock in North Little Rock, Arkansas. Provided below is a description of the event:

Program Description

How to Protect Farm Assets and Transfer Them to Heirs

Estate planning for farms and ranches requires specialized knowledge and tools to ensure the best client representation. This legal course will give you the knowledge to preserve the farms and other assets your clients have worked their entire lives to acquire and build. Explore the challenges and opportunities unique to estate planning for farmers to help make good sense of difficult legal and financial policies. Learn what you need to know about estate taxes, wills, trusts, government programs, and other key elements. Help your clients take care of their estate planning needs and their family's future - register today!

  • Take full advantage of government farm programs and valuation discounts.
  • Explore the deciding factors in choosing the right business entity when planning ownership transfer.
  • Analyze the liquidity of farm assets and augment each plan accordingly.
  • Employ all available tools for transferring assets and preserving wealth.
  • Tackle harvest yield predictions and other unique factors of farm asset valuation.
  • Recognize when giving away the farm is the wisest financial decision and how to do it properly.

Who Should Attend

This basic-to-intermediate level seminar is designed for:

  • Attorneys
  • Estate and Financial Planners
  • Accountants and CPAs
  • Tax Preparers
  • Trust Officers
  • Paralegals

Course Content

  1. Business Structure Choice and Conversion - Including Sample Documents
  2. Income and Gift Tax Planning
  3. Medicaid (Long-Term) Planning for Farmers and Ranchers
  4. Planning for a Full or Partial Outright Sale or Gift
  5. Agricultural Use Valuation
  6. Planning for a Gradual Transfer Within the Family
  7. Transfers Upon Death: Key Estate Administration Concerns

Continuing Education Credit

Continuing Legal Education – CLE: 6.00

Financial Planners – Financial Planners: 7.00

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 7.00 *

* denotes specialty credits

September 22, 2018 in Conferences & CLE, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Friday, September 14, 2018

Article on Power of Attorney Under the Uniform Power of Attorney Act Including Reference to Virginia Law

PowerofattPhilip Manns recently published an Article entitled, Power of Attorney Under the Uniform Power of Attorney Act Including Reference to Virginia Law, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

The Uniform Power of Attorney Act (UPOAA), approved in 2006, slightly amended in 2008 and more significantly amended in 2016, has been adopted by 27 U.S. jurisdictions. The UPOAA promotes uniformity in language delineating an agent’s powers and mandates that third parties accept notarized powers of attorney. Under the UPOAA, an instrument simply granting an agent authority to do “all acts that a principal could do,” vests that agent with broad powers: the precise delineation of those powers is produced by about a dozen pages of UPOAA text automatically incorporated by reference into such “all acts” instruments. However, the UPOAA expressly excludes from such “all acts” agents nine powers, six of which relate to acts that could dissipate the principal’s property, two of which relate to delegation of authority, and the ninth of which relates to the “content of electronic communications.” Those nine, so-called “hot” powers, are granted to an agent only when the instrument “expressly grants” them.

Five problematic areas exist within the UPOAA: (1) internal conflict within the UPOAA after its 2016 amendments regarding agent access to the content of the principal’s electronic communications; (2) a failure automatically to grant incidental powers to any hot powers expressly granted; (3) a missing modifier in the section concerning an agent’s authority to make gifts; (4) a missing good faith requirement in the agent certification rule; and (5) overlap among the ostensibly distinct hot powers.

Virginia’s adoption of the UPOAA included about two-dozen changes to the uniform text, nine of which are particularly important: (1) the cold gifting power; (2) the gutting of the primary consumer protection of the UPOAA; (3) the reversal of the forged signature rule; (4) the negation of provisions conditioning effectiveness upon delivery of the instrument to the agent; (5) the expanded agent disclosure rule; (6) the agent’s creation and amendment of trusts; (7) the rule of presumed non-ademption; (8) the legally irrelevant failure to adopt the UPOAA Statutory Form Power of Attorney; and (9) the curious change to the definition of “incapacity.” Some of those changes are inexplicable; others are misguided.

Regarding agency law doctrines not particularly addressed by the UPOAA, but obviously affected by it, the UPOAA reverses the century-old Virginia rule of strict construction for powers of attorney, and that will expose irreconcilable conflicts between (1) two Virginia Supreme Court cases stating opposite rules regarding the evidentiary presumption placed upon self-dealing agents, and (2) two Virginia Supreme Court cases reaching opposite conclusions on nearly identical facts for agents who made gifts to themselves of the principal’s property. Thus, courts soon will confront the consequences of the UPOAA and its effect upon various aspects of agency law.

September 14, 2018 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, September 4, 2018

Are Reverse Mortgages Unduly Risky?

ReverseThe media and news outlets have portrayed reverse mortgages over the years as overtly risky and manipulative to retirees, tricking them with deceptive advertising into new obligations that end with them losing their homes. But these claims are not always accurate.

The risks of reverse mortgages are clear right from the beginning, sometimes with less risks than financing a new car. With a reverse mortgage, the home owner is obligated to do what they should already have been doing - pay their property taxes and homeowners insurance, and maintain their property. There is no hidden phrases that could outline disaster. The words “With a Home Equity Conversion Mortgage you retain title to your home. This means that you also have all your obligations as a home owner. You are responsible for home owner taxes and insurances," is repeated numerous times within the document that a homeowner receives from their bank so these requirements should not come as a surprise.

Reverse mortgages reduce homeowner equity, which reduces the value of estates that are transferred to the next generation. That is not a weakness of the program, it is by design. The premise of the concept is that the current homeowners can make better use of the equity in the home than the homeowner's beneficiaries.

See Jack Guttentag, Are Reverse Mortgages Unduly Risky?, Forbes, September 1, 2018.

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

September 4, 2018 in Current Affairs, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, September 3, 2018

CLE on Estate Planning with Retirement Plans and IRAs: How to Do It Right

CLEThe American Law Institute is holding a webcast / telephone seminar entitled, Estate Planning with Retirement Plans and IRAs: How to Do It Right, on Thursday, November 15, 2018. Provided below is a description of the event:

Why You Should Attend

Qualified retirement plans, IRAs, and Roth IRAs often represent a significant portion of many estates. The employee benefit and income tax rules that apply to retirement plans, however, impose additional planning considerations that may seem counter-intuitive to estate planners.   Join us for this practical webcast and learn how to integrate retirement plans into your client’s estate plan while minimizing the potential for pitfalls and traps—for both you and the intended beneficiary. Also learn to recognize the unique issues that may arise during the estate administration of the retirement plan owner.  

What You Will Learn

This up-to-date audio webcast, taught by two nationally known experts in wealth transfer planning, will give you the latest information and guidance on:

Minimum distributions during the plan owner’s life, and after death

Estate planning techniques to balance minimum distributions with other considerations

How to draft trusts that qualify for optimal post-death minimum distributions

Spousal rights in retirement plans under federal and state law, and how to address them in the estate plan

Whom to designate as death beneficiary, and why

Death administration of retirement plans

Disclaiming and other post-mortem strategies

Roth IRA conversions, and when they make sense

Qualified charitable distributions from IRAs, and when they make sense

Rollover and transfer rules for spouse and non-spouse beneficiaries

 

Who Should Attend

This program will benefit a wide array of estate planning and tax attorneys, financial advisors, and CPAs.

September 3, 2018 in Conferences & CLE, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, August 29, 2018

Why Your Power of Attorney Probably is an Accident Waiting to Happen

PoaPower of Attorneys (POA) are routinely - and should always be - included in an estate plan. They can often be the most important document in an estate plan and determines who will be making financial and other decisions in the unfortunate situation that the person becomes incapacitated. But a POA can be complicated and intricate, so there are several things to consider when making one appropriate for your circumstances.

  • Choose the agent carefully 
    • Do not feel obligated to appoint a certain person or family member
  • Consider appointing more than one person
  • Check with your financial institutions
    • Often they have their own guidelines and rules for honoring POAs
  • Consider when it takes effect
  • Establish some oversight
  • Appoint a protector
  • Make your intentions clear

See Bob Carlson, Why Your Power of Attorney Probably is an Accident Waiting to Happen, Forbes, August 24, 2018.

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

August 29, 2018 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)