Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Saturday, August 30, 2014

New Case: Parker v. Benoist

Gavel2

A recent case from the Supreme of Mississippi held that forfeiture provisions in wills in Mississippi are enforceable unless the will contest has been founded upon probable cause and made in good faith. 

This decision comes after siblings Bronwyn Benoist Parker and William Benoist litigated the will of their father, who granted significantly more property to William and less to Bronwyn than a previous will executed in 1998.  Bronwyn alleged William had unduly influenced their father, who was suffering from dementia and drug addiction, into creating a new will, which included a forefeiture clause that revoked benefits to any named beneficiary who contested the will.  

The Supreme Court of Mississippi held that Bronwyn had sufficiently shown that their suit was brought in good faith and founded upon probable cause.  Thus, the Court reversed the decision of the Chancery Court, allowing Bronwyn to inherit in accordance with her father’s 2010 will.  Parker v. Benoist, 2014 WL 4243763 (Miss.)

Special thanks to Howard M. Zaritsky for bringing this case to my attention.

August 30, 2014 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

UK Infographic Signifies Importance of a Valid Will

Last will and testament

While many people forego creating a will during their lifetime, this is especially true in the UK where almost 56 percent of the adult population does not possess a valid will. 

This shocking statistic caught the attention of Whitehead Monckton, a Kent law firm who subsequently teamed up with Reflect digital to create an infographic outlining the importance to UK citizens of having a will. 

The infographic, entitled, Do You Hold a Valid Will?, conveys a powerful message regarding the significance of obtaining a will.  Through numbers, questions, and omnipotent realities, the infographic poses thought provoking concepts including the repercussions of passing away without a will.  This infographic is a positive step towards educating individuals about the positive and negative implications of estate planning.

Special thanks to Aedan Kiernan (Reflect Digital) for bringing this article to my attention.

August 28, 2014 in Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Article on Inheritances and Promised Lands

Patricia a. cain

Patricia A. Cain (Santa Clara University School of Law) recently published an article entitled, Family Drama: Dangling Inheritances and Promised Lands (2014). Tulsa Law Review, Vol. 49 (2013); Santa Clara Univ. Legal Studies Research Paper No. 10-14.  Provided below is the abstract from SSRN:

This paper reviews Hartog’s 2012 book, Someday All this will be Yours: A History of Inheritance and Old Age. Relying on case documents from trial courts in New Jersey in the early twentieth century, Hartog tells the rich stories behind these cases. The cases involve claims by family members, usually sons or daughters, who were promised inheritances in exchange for taking care of an aged parent. Sometimes those promises are enforced and sometimes not. The stories behind the cases, and Hartog’s observations about them. should be of interest to teachers and scholars of wills, trusts, and estates.

August 28, 2014 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Estate of Lucien Freud Pays Inheritance Tax in Art

ArtThe works of one of the most prestigious living British artists were put on display Tuesday at the Tate Britain. The collection, an intimate catalog of pieces by eighty-three year old Frank Auerbach, which includes sketches, birthday cards, and compilations from his early years, were owned by Lucien Freud, a friend of Auerbach's. Freud, who had formerly had the pieces on display in his home in London, died three years ago. The Arts Council England took possession of the collection instead of the Government collecting inheritance tax.

See Miranda Bryant, Treasured by a Friend: Lucian Freud’s Auerbach Works on Show at Tate Britain, London Evening Standard, Aug. 26, 2014.

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

August 28, 2014 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Chart on Florida Probate Deadlines

Gavel2For guidance on the deadlines for various probate filings in Florida, see this chart by D.W. Craig Dreyer.

See Craig Dreyer, Deadlines and Timelines in Florida Probate, Clark Skatoff, Aug. 27, 2014.

August 28, 2014 in Estate Administration, Estate Planning - Generally, Resource Links | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2014

Anna Nicole Smith's Twenty Year Battle Finally Ends

Anna nicole

After nearly twenty years of contentious debate in the courtroom, a federal judge recently ruled Anna Nicole Smith’s estate would not receive millions of dollars from the estate of E. Pierce Marshall, the son of Anna Nicole’s late husband, J. Howard Marshall II.

Judge Carter ruled that there was “just no evidence before the court that justifies awarding sanctions against Pierce Marshall’s estate.”  The judge further added it is time for this suit to no longer “drag its weary length before the court.”

After Howard Marshall II died in 1995, he left his $1.6 billion estate to his son and nothing to Smith.  According to NBC news, Smith asserted her husband vowed to leave her more than $300 million; yet, a Houston jury ruled that Marshall was mentally fit when he wrote the will.  Over the course of twenty years, local and federal courts have rejected Smith’s attempts to overturn Marshall’s will and trust in order to obtain money from his estate. 

See Mike Vulpo and Claudia Rosenbaum, Anna Nicole Smith’s Estate Denied Again: Judge Says Dannielynn Birkhead Won’t Receive $44 Million, E News, Aug. 20, 2014. 

August 27, 2014 in Current Affairs, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2014

New Hampshire Law Untangles Probate Process

Last will and testament

Everyday there is a new headline regarding wills, inheritances, and disinheritances that have gone badly.  Recently, the estate of late city resident Geraldine Webber is in dispute to the point that it involves the Portsmouth Police Commission.  During a recent hearing, the situation was described as “a disgusting mess.” 

A new state law in New Hampshire involving the active role of Portsmouth lawyer Sally Mulhem at Mulhem & Scott PLLC, is designed to prevent future messes of this type.  It allows a will to be probated, therefore legal and binding, before a person passes away.  “I saw an alarming increase in the number of probate and trust litigation cases.  It was just devastating families, and the attorneys’ fees were just consuming whatever estate was there.  I didn’t want to see this trend continue.  I wanted to do something to get this under control.” said Ms. Mulhem.

Five years ago, Ms. Mulhem began working with the New Hampshire Trust Council to address the situation regarding wills, estates and trusts, and how to address the legal ramifications of trust law.  Their efforts produced SB 289, with passage of the measure by the Senate and House.  The bill was signed into law on July 11, with a start date of July 1, 2014. 

With the new law, a person with what is likely to be a controversial will can opt to hold a hearing before a probate court judge to determine the validity of what they have done.  “It allows the person to have a definitive say while they’re still here.”

See Paul Briand, New Granite State Estate Law Designed to End Shenanigans, Seacoast Online, Aug. 25, 2014. 

August 25, 2014 in Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0) | TrackBack (0)

Powerless with Power of Attorney

Power of attorney

Power of attorney has always been an inexpensive way to give someone the right to act on another person’s behalf.  Yet, the power is not absolute and when it fails, the consequences can be disastrous. 

For Christine, a 62-year-old woman in Connecticut, experienced the powerlessness power of attorney embodies.  After sorting out their parents’ estate, Christine’s older brother promised he would set his own affairs in order so they would not face the same messy process.  He drafted a will, titled accounts to transfer to them on death, and drew up a power of attorney should he become incapacitated.  Years later, when Christine’s brother began suffering from severe dementia, he needed indefinite care.  Christine knew there would be no problem paying for this since he had done well financially.  However, when she looked at the power of attorney, she noticed he used her legal first name, Carol, which she had abandoned.  It was not until she went to bank after bank explaining the situation, was she denied access to his accounts to pay for his care.  “They said ‘Go get your marriage certificate’ . . . . I had my birth certificate, passports, a driver’s license.  But they did not have the name my brother had on that form.” 

Estate planners say that Christine’s experience is not uncommon.  Banks routinely try to deny the appointed person any right to have access to accounts.  One valid reason for banks’ hesitancy is because a power of attorney can be used to commit elder fraud.  Banks have been sued for giving access to accounts without properly checking the person named in the power of attorney. 

A better option all around might be a revocable trust.  It allows people to put their property in a trust while they are still alive, using it as they normally would.  “Banks are more comfortable with this because you’re funding it now while you’re competent.”  Provisions can also be written into revocable trust documents that allow future trustees to put in assets that were forgotten when the trust was created. 

See Paul Sullivan, Power of Attorney Is Not Always a Solution, The New York Times, Aug. 22, 2014.

Special thanks to Matthew Bogin (Law Offices of Matthew B. Bogin) for bringing this article to my attention.

August 25, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Saturday, August 23, 2014

Questions Remain in Delaware's Digital Asset Law

Computer 2

Last week Delaware Governor Jack Markell signed into law legislation permitting Delawarean families the right to the digital assets of loved ones who are incapacitated or deceased, the same way they would be given access to physical documents.  Yet many people do not realize that our Twitter, Facebook, and email accounts are not our only online assets. 

The new Delaware law raises the complexities of how to deal with the accounts that house our e-book collections, music and video libraries, or even game purchases, and whether they can be transferred to family and friends after death.  While the bill broadly states digital assets include “data, audio, video, images, sounds, computer source codes, computer programs, software, software licenses,” the law also states these assets can be controlled by the deceased’s trustees only to the extent allowed by the original service’s end user license agreement (EULA). 

I have previously stated that the Delaware statute does not override this feature of Amazon’s, or most, EULAs, which are protected by other forms of federal law.  The bill is not designed to change an asset you could not transfer into one you can. 

Although tech companies have been dealing with some of the issues surrounding the accounts of the deceased, they have not specifically addressed the effect of EULAs on the fate of any products purchased with those accounts after someone has passed.  For now, estate planners are coming up with creative solutions.  Some planners suggest setting up a trust and using it to purchase digital assets.  In naming themselves and children as trust beneficiaries, they can pass down e-books or music without breaking any ban on third party transfers.

See Ariel Bogle, Who Owns Your iTunes Library After Death? Slate, Aug. 22, 2014.

Special thanks to Howard M. Zaritsky for bringing this article to my attention.

August 23, 2014 in Estate Administration, Estate Planning - Generally, New Legislation, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, August 21, 2014

Providing for Your Pet

Dog

Losing a pet can be just as difficult as losing a family member.  While many people outlive their pets, there is also the possibility that a pet can outlive their owner.  In this situation, many pet owners would want their pets well cared for.  In a book entitled, Fat Cats and Lucky Dogs, written by Barry Seltzer and myself, pet owners are encouraged to plan ahead for their cherished companions while the owners are alive and competent. 

Creating a pet trust is one method to provide for your pet.  The pet trust can be established while the owner is living through an inter vivos trust or at death through a testamentary trust.  The inter vivos trust takes effect instantaneously, and thus will be in place if the owner becomes mentally or physically unable to care for the pet.  The testamentary trust goes into effect after the owner dies, but only after the will has been found valid in court. 

The amount of money needed to fund a pet trust depends on the age, health, and life expectancy of the animal.  Funds will need to be increased if expensive medical treatments are anticipated.  Moreover, try to choose a caregiver who would be financially able to continue care if the pets trust funds are exhausted. 

See Sandra W. Reed, Give Back to Animal Companions: Provide for Their Care, Your Glen Rose TX, Aug. 18, 2014. 

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

August 21, 2014 in Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)