Wills, Trusts & Estates Prof Blog

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

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Saturday, January 31, 2015

Mother Scams Daughter Out of $48K Trust Fund

Vanessa nievesA city welfare worker scammed her own daughter out of a $48,000 trust fund left by her late father, who was shot to death during a robbery in 2006. 

According to a new lawsuit, Vanessa Nieves, 21, learned late last year that her mother, Gloria Torres, tricked her into signing over the insurance money that she was supposed to receive at 18.  Torres convinced her daughter that the paperwork would simply freeze the account until she turned 21.  Nieves subsequently agreed to sign the papers because she wanted the money to pay for her education. 

When Nieves went to withdraw the funds from Chase Bank in December, she was told by a clerk that her mother had deposited the funds into her own account and closed her daughter’s account. 

See Julia Marsh, Mom Accused of Scamming Daughter Out of $48K Trust Fund, New York Post, Jan. 31, 2015.

Special thanks to Hani Sarji (Attorney, New York) for bringing this article to my attention. 

January 31, 2015 in Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Free Webinar on the Uniform Powers of Appointment Act

CLEThe American Bar Association Section of Real Property, Trust and Estate Law is holding a free webinar for RPTE members entitled, The Uniform Powers of Appointment Act: Straightforward Default Rules to Fill a Vacuum, on February 11th from 12:30-1:30 PM ET.  Here is why you should attend:

Powers of appointment are among the most commonly-used techniques in estate planning.  Despite this fact, little case law and virtually no statutory law governing powers of appointment exists in many United States jurisdictions.  As a result, much uncertainty exists in the planning and administration of estates, often leading to costly litigation.  Does the residuary clause of a powerholder’s will exercise a general power of appointment?  If a power of appointment is ambiguously drafted, may the powerholder give the appointive property only to some of the appointees, omitting others entirely? May a power of appointment be exercised in a record that is not a writing?  What is the difference between a power of appointment, a fiduciary power, and a power of attorney? When is a contract to exercise a power of appointment enforceable?  What are the rights of a powerholder’s creditors in the appointive property? 

In 2013, the Uniform Law Commission published the Uniform Powers of Appointment Act (“UPAA”) to provide a well-organized codification that eliminates much of the uncertainty surrounding the answers to these questions.  Our panelists have played important roles in the preparation and dissemination of the UPAA: Mr. Kent, a former ULC Commissioner from Colorado, was a member of the drafting committee; Professor Hess was the ABA Advisor to the drafting committee, and Mr. Orzeske is the member of the ULC staff who advises state legislatures planning for the enactment of the UPAA.

The speakers will first briefly summarize the process by which the act was written.  Then, they will discuss selected provisions dealing with the creation, exercise, and interpretation of powers of appointment.  Finally, they will outline experiences with enactment to date.

January 31, 2015 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2015

New Case: In re Matheny Family Trust


In a recent case decided by the South Dakota Supreme Court, a sister and brother were co-trustees of a family trust established by the siblings’ parents.  Before their mother died, she entered into a contract for deed with brother for the sale of 480 acres of trust farmland.  After the mother died, the siblings stipulated for court supervision of the trust.  Subsequently, sister sued brother and his wife for undue influence on his contract for deed with their mother.  The circuit court granted summary judgment for Brother, concluding that Sister’s claim of undue influence was barred by the statute of limitations and that any oral agreement associated with the contract for deed was barred by the statute of frauds. The Supreme Court affirmed, holding (1) because Sister did not timely bring her claim for undue influence, the circuit court correctly ruled that the claim was barred by the statute of limitations; and (2) because Sister sought to enforce her asserted interest in the sale of real estate, the circuit court correctly ruled that any oral agreement regarding the real estate was barred by the statute of frauds.

See In re Matheny Family Trust (2015), Justia US Law. 

January 30, 2015 in Estate Administration, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, January 29, 2015

Sisters Forced to Repay Inheritance

Elaine Briscoe

After two sisters were given  £100,000 following their father’s death, they are being forced to pay it all back when the insurance company sent them the wrong man’s money. 

Elaine Briscoe and Sandy Millington received the six-figure check after a three-year battle to track down the missing pension of Rob Gent.  Immediately, the sisters split £40,000 between their four children and spent £20,000 more. 

Within a month after receiving the check, Friends Life said the sisters were given a pension belonging to another customer with the same name.  The pensions and insurance companies subsequently threatened the sisters with legal action unless they gave it all back. 

The pair was forced to sell their father’s house in an effort to repay the money they had spent.  They also had to borrow from friends and other relatives to make up the full amount including interest. 

See SWNS Reporter, Sisters Given £100k Life Insurance for Father’s Death Told to Pay It ALL BACK After Getting the WRONG Man’s Money, SWNS.com, Jan. 29, 2015.

January 29, 2015 in Estate Administration, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 28, 2015

Estate Planning To-Do List

Estate plan 2

January is generally a busy month for estate planners as clients follow up on resolutions to get their estate plans in order.  Regardless of whether you are hearing from clients, consider being proactive with them since the beginning of the year is a perfect time to handle many estate planning tasks. Below is list to help update and review clients’ estate plans.

  1. Make exclusion Gifts Early.  Although many clients know that each year they can make annual exclusion gifts, they may not know the best possible time to make these gifts is at the beginning of the year.  This way, if something were to happen to a client during the course of the year, the value of the gift would already be outside of the estate for estate tax purposes. 
  2. Fund Revocable Trusts.  Help clients put assets into a revocable trust in order to provide quick access in the event of incapacity or death, and to keep personal affairs private. 
  3. Check Beneficiary Designations.  A common and potentially costly mistake involves outdated or never signed beneficiary designation forms.  For many clients, life insurance policies and retirement benefits represent valuable assets and if these are incorrect, making changes can be expensive or even impossible.
  4. Review Named Fiduciaries.  Choosing fiduciaries in an estate plan is critical.  Moreover, you must review these fiduciaries on a regular basis.  While a client may have named the right person or institution at a certain point in time, subsequent changes could have altered their situation. 
  5. Get Procrastinators to Act.  Even though it can be difficult to motivate an unmotivated client, an unexpected incapacity or death is even more difficult for a family and is not a rare occurrence.  It is critical to lay out your client’s options and ensure they understand the detriments of failing to have an estate plan in place. 

See Tracy Craig, Estate Planning Checklist: 5 Things to Do Now, Financial Planning, Jan. 27, 2015.

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

January 28, 2015 in Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Non-Probate Assets, Trusts | Permalink | Comments (0) | TrackBack (0)

Lawsuit Arises Over Inheritance Dispute


On October 15th last year, Theresa Hartley, agent for Thomas Lee Thibodeaux, filed a lawsuit in Jefferson County District Court against Melissa Campbell.  According to the complaint, Thibodeaux was married to Nina LaPierre when she passed away on September 11, 2001, leaving a holographic will that gave him two houses and a life estate in a Sour Lake property, making him and Campbell co-independent administrators of her estate. 

The complaint states Campbell refused to take the steps to convey the properties to Thibodeaux and demanded he pay her $450,00, which Thibodeaux, 84, did in confusion.  Campbell is accused of breach of fiduciary duty, fraud, violating the theft liability act, unjust enrichment, and tortious interference with inheritance rights.  Moreover, the complaint alleges that Thibodeaux lacked capacity to enter into such a transaction.  

See Annie Cosby, Inheritance Dispute Leads to Lawsuit, The Southeast Texas Record, Jan. 27, 2015.

January 28, 2015 in Estate Administration, Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0) | TrackBack (0)

Judge Finds James Brown Was Married When He Died

James BrownAs I have previously discussed, a legal battle over James Brown's estate centered around Brown's marital status at the time he died has been ongoing since 2007. Tomi Rae Hynie Brown, who was not included in Brown's will, claimed to be his surviving spouse, but that claim was challenged based on her being already married at the time she and Brown were wed.

In In re the Estate of James Brown, Judge Doyet Early III held that Hynie Brown was legally married to Brown at his death his 2006, because her previous marriage was annulled due to it being found void based on bigamy, as her previous husband was already married.

See Meg Mirshak, Tomi Rae Hynie Brown Ruled James Brown Widow, The Augusta Chronicle, Jan. 27, 2015.

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

January 28, 2015 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

Ad Seeks Daughter to Inherit Fortune


After a wealthy elderly woman in Zhengzhou, Henan Province posted a classified ad in hopes of finding an adult daughter to keep her company and possibly inherit her fortune, social media started buzzing. 

“I am a 68-year-old doctor who owns a clinic and four houses in Zhengzhou but have no children.  I want to find a kind-hearted and filial woman under 40 to be my daughter, who could inherit my wealth if we get along,” read the notice posted near a job recruitment center. 

The unnamed woman stated that she wanted to hire a daughter, not a nurse and only a “kind-hearted and ambitious woman” could inherit her money.  If she is unable to find a satisfactory candidate, she will donate all her property to a local welfare center.

See Henan Business, Wealthy Doctor Posts Ad Seeking Daughter to Inherit Fortune, Global Times, Jan. 27, 2015.

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

January 27, 2015 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Rivers' Daughter Files Suit in Mother's Death

Joan Rivers

According to a multimillion dollar lawsuit filed by Melissa Rivers, Joan Rivers’ doctors were so busy taking cell phone pictures of their famous patient that they missed the moment her vital signs plummeted and ignored pleas form the anesthesiologist to halt the procedure. 

The lawsuit, filed Monday in Manhattan Supreme Court against the clinic and the two doctors and three anesthesiologists, alleges that their negligence triggered a coma that ended 81-year-old Joan Rivers’ life.  “Had the doctors acted as physicians for Joan Rivers instead of groupies, Joan Rivers would have been doing ‘Fashion Police’ last week,” said one family lawyer. 

Melissa Rivers said she filed the lawsuit because of her “unwavering belief” that no family should ever have to experience what “my mother, Cooper and I have been through.” “The level of medical mismanagement, incompetency, disrespect and outrageous behavior is shocking and frankly almost incomprehensible.  Not only did my mother deserve better, every patient deserves better.”

Experts say Rivers’ estate could collect millions of dollars in a negligence suit because the perpetually-busy comedian was still making money from stand-up gigs, books and her television shows.

See Barbara Ross and Ginger Adams, Joan Rivers’ Daughter Melissa Files Suit in Mother’s Death, New York Daily News, Jan. 26, 2015.

January 27, 2015 in Current Affairs, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Avoiding Financial Ruin The Second Time Around

Divorce 2

While love may be lovelier the second time around, it may be much more complicated if it does not last.  Second marriages already struggle, as they have a divorce rate exceeding 60 percent.  Most of these divorces will not result in the $974 million payout that Texas oil tycoon Harold Hamm gave to his ex, but all second marriages require special planning.  Below are a few things to consider:

  • Prenuptial Agreements.  Sorting out the legal and financial issues ahead of time can prevent soaring costs later.  Prenuptial agreements are also being used to address issues within the marriage such as spending priorities.
  • Postnuptial Agreements.  Even if you did not do a prenup, married couples can opt for a postnup.  This often deals with housekeeping issues and lifestyle disputes.  These agreements are useful in times of marital crisis.  Monetary penalties for indiscretions are commonly incorporated into the document.
  • Estate Planning for a Second Marriage.  If the couple escapes divorce, the marriage will end at death.  The competing interests will be one’s adult children and the new spouse.  One solution is to grant the surviving spouse a “right of occupancy” in the house, which can be done with a will or trust and gives the survivor the right to reside in the home until the earlier of her death, departure, or a fixed number of years. 

See Ann-Margaret Carrozza, How to Avoid Financial Pain If Your Second Marriage Fails, New York Daily News, Jan. 26, 2015.

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

January 27, 2015 in Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)