Wills, Trusts & Estates Prof Blog

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

Friday, November 27, 2015

Some Tips When Faced With An Estate Sale

Estate SaleAn estate sale is a near universal sign of distressing times. The task of taking a lifetime of memories and commoditizing them for sale is often left to a 3rd party that will manage the sale for a fee. When choosing the estate sale manager, the first step should be to consult with people you know for references, especially from estate planners who will likely have connections to reputable managers. Once a few names are collected, make sure to do some basic research including checking out reputation online and contacting previous customers to hear their experience. In addition, find out the fee that will be charged, be it flat or commission based, and make sure that it covers all expenses in order to avoid unexpected chargers that can arise post sale. In the end, finding an estate sale manager, while an important task, does not have to be unduly stressful as long basic preparation is performed and patience is had when searching for the best person for the job.

See, Reduce The Stress of Conducting An Estate Sale, Idaho Estate Planning, November, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

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

Wednesday, November 18, 2015

New Digital Assets Bill Advancing Through Florida Legislature

Florida welcomeRecently in the State of Florida new “digital assets” protection legislation has passed through a review committee. On Tuesday the Florida Senate Judiciary Committee approved SB 494 unanimously. The bill will give people the power to choose someone that will have access to and control over their online accounts. According to a staff analysis digital assets can include “emails, text messages, online photographs, documents stored in the cloud, electronic bank statements, and other electronic communications or records.” The new bill has been reworded after it failed to pass last session when it faced opposition from Facebook and Google. This new legislation will require that a person gives “explicit consent” to someone else having access to and control over their digital assets.

See Jim Rosica, Digital Assets Bill Breezes Through First Committee, Florida Politics, November 17, 2015.

November 18, 2015 in Current Affairs, Estate Administration, Estate Planning - Generally, Technology, Trusts, Web/Tech, Wills | Permalink | Comments (0)

Friday, November 13, 2015

New Book On Wills And Estate Planning

ArticleWills and Estate Administration by Kenneth A Verammen has recently been published and is available through ABA Book Publishing. Provided below is a description of the book:

Estate planning and administration responsibilities are often a significant part of a solo or small firm lawyer’s practice, but these issues are often time-consuming and complex. Written by a veteran attorney who has focused on streamlining his firm's practice in this area, Kenneth Vercammen shares how to establish and strengthen a firm’s wills and estate practice. 

Straightforward and to-the-point, Wills and Estate Administration provides step-by-step guidance that firms can use to handle all aspects of an estates practice, from initial client intake to closing the file. Topics are defined in six parts for ease of use:

  • Preparation for Wills/Estate Planning Interviews
  • Interviewing Clients
  • Additional Estate Planning Issues
  • Estate Administration
  • Guardianship of Disabled or Incompetent Parents
  • Marketing Your Wills and Estate Administration Practice

November 13, 2015 in Books, Books - For Practitioners, Estate Administration, Wills | Permalink | Comments (0)

Thursday, November 12, 2015

The Basics On The HELOC Fixed-Rate Option

HELOCThere are a growing number of banks moving away from home-equity loans that are now offering a fixed-rate option on a home equity line of credit (HELOC). Some lenders are not providing the HELOC as an alternative to both a fixed-rate home equity loan and drawing funds against a line of credit while paying a variable interest rate. A HELOC would let borrowers reduce uncertainty by being able to tell their lender that they want all or part of the amount that they borrowed to be converted to a fixed-rate loan at the market’s current interest rate. The borrower would then pay back that amount over a set number of years and would be able to keep borrowing so long as they have funds remaining in their credit line. People should speak with a professional estate planner to find out if a HELOC fixed-rate option might be right for them.

See Amy Fontinelle, How a HELOC Fixed-Rate Option Works, Investopedia, November 11, 2015.

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

November 12, 2015 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, November 10, 2015

Growing Number Of States Signing On To Digital Asset Act

KeyboardMany assume, reasonably so, that the administrator of an estate would have access to the digital material of a person that recently died. However, that is unlikely to be true in many situations since it is the agreement that the user signs when registering for the digital account that controls rather than state law. Since most user agreements explicitly deny access to 3rd parties, even if they are the legal representative of the account holder, then administrators are left out in the cold. However, more states are adopting the Uniform Fiduciary Access to Digital Assets Act which supersedes any user agreements and specifically authorizes a fiduciary to be able to access online data and accounts. Hopefully, it is only a matter of time before more states adopt this Act or similar legislation as the problem of digital account access will only grow in the future.

See Liza Horvath, Liza Horvath, Senior Advocate: On my death, please say goodbye to my Facebook friends, Monterey Herald, November 6, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

November 10, 2015 in Current Affairs, Death Event Planning, Estate Administration | Permalink | Comments (0)

Monday, November 9, 2015

Some Tips On IRA Management When A Young Spouse Inherits

Piggy BankWhen a younger spouse inherits an IRA they are primarily left with two choices, to stay as a beneficiary under the plan or have it roll over into a new account in the spouse's own name. In a case like this, it is better to keep the account under the old name since it prevents the penalty associated with early distributions. On the date the deceased spouse would have turned 59 1/2, the surviving spouse can then roll it over into a new account without facing a penalty and avoid the mandatory distributions that would have arrived at age 70 1/2. While this is not a strategy that all have to use, in many circumstances it makes the most sense and will best protect the surviving spouse's interest.

See, Inheritance Guidelines: When a Younger Spouse Inherits an IRA, Law Firm News Wire, November 6, 2015.


November 9, 2015 in Estate Administration, Non-Probate Assets | Permalink | Comments (0)

Saturday, November 7, 2015

Providing Heirs With An Intellectual Inheritance

Golden eggsFamilies that have wealth often have concerns about whether their heirs are prepared for the responsibilities of managing the family fortune.  "Unfortunately, 70% of family wealth is destroyed by the second generation, and family unity is destroyed right along with the wealth. After three generations, the loss of wealth exceeds 90%."  There are some families that are able to avoid the statistics by properly preparing heirs with an "intellectual inheritance" as well as a financial one.  Lack of communication and trust within families can often lead poor planning and heirs not being prepared to manage the wealth that they inherit.  Families should be open with each and and should regularly meet and plan.  A "heritage statement" should also be created to chart out the families goals and vision.

See Brian Luster and Steven Abernathy, Preparing for Inheritance: How to Avoid Losing It All, Barron's, November 7, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

November 7, 2015 in Estate Administration, Estate Planning - Generally, Estate Tax, Trusts, Wills | Permalink | Comments (0)

Wednesday, November 4, 2015

New Case On Informed Consent When Representing Two Or More Family Members

GavelA women set up a trust that made her and her son life beneficiaries with a remainder interest to her son and daughter. However, a dispute arose over the trust which resulted in the son, while acting under a power of attorney, to seek assistance from attorneys which represented both the son and mother in changing the trust. As a result, disciplinary authorities were called in to investigate potential conflicts of interest by the attorneys in their dual representation but the attorneys were absolved by the board.

In In Re Szymkowicz, the D.C. Court of Appeals ruled that there was substantial risk of conflicting interest by the attorneys representing both the mother and son. It was held that even if two family members’ interests are “generally aligned,” there can be significant risk of later conflict so informed consent is required. The court did not make a determination if there was informed consent given for the dual representation and remanded the case back to the disciplinary board to make the determination.

Special thanks to Karen E. Boxx for bringing this case to my attention.

November 4, 2015 in Estate Administration, New Cases, Professional Responsibility | Permalink | Comments (0)

Tuesday, November 3, 2015

How To Avoid Escheatment Of Financial Assets

Pen and PaperEscheatment is a process designed for a state to assume ownership of an asset whose owner has died. It is usually triggered after a certain period of dormancy which indicates that the owner has died or abandoned the asset. However, dormancy can pose problems for some long term investors that stay hands off their accounts. But there are some ways to avoid getting an accidental escheatment such as the following:

  • Make some sort of contact with the financial institute even if it is making small trades or speaking to a representative. A minimum of occassional activity of any sort will show the owner is still among the living.
  • Make sure to cash dividend checks. While this seems like something everyone would do to avoid the check expiring and losing the money, many people will ignore checks that are small and seemingly not worth the time to deposit.
  • Filling out any proxy vote paperwork that is mailed to an investor will show you are still on the mortal coil.
  • Make sure to update you contact and other personal information. This is a good strategy because it allows the financial institute to more easily reach you if needed and shows that the owner has not abandoned the property through death or otherwise.

See Claire Boyte-White, 4 Ways to Avoid Escheatment of a Stock Account, Investopedia, October 29, 2015.

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


November 3, 2015 in Estate Administration, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Monday, November 2, 2015

CLE On Changes And Trends Affecting Special Needs Trusts

CLEThe University of Texas School of Law is presenting a CLE entitled,12th Annual Changes and Trends Affecting Special Needs Trusts, February 4-6, 2016, at the Radisson Hotel and Suites in Austin-Downtown.  Here are some details about the event:

The 12th Annual Changes and Trends Affecting Special Needs Trusts brings together leading professionals in the SNT field, features the latest updates and hot topics, and offers a great set of materials including sample forms, drafting tips, sample language and resources. If you work with special needs trusts—or want to learn how to use, draft, fund and administer them—don't miss this program!


November 2, 2015 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)