Wills, Trusts & Estates Prof Blog

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

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Wednesday, December 17, 2014

Judge Forces Woman Out of Home

Elizabeth Ashley

A 79-year-old woman will be forced out of her £1.2 million home after a judge ruled that she cannot share it with the grown-up son she despises. 

Elizabeth Ashley had changed the locks on her home in Wandsworth in order to keep out her son, Mitchim.  However, Judge Diana Faber ruled she had “unlawfully excluded” him from the house that he had mostly paid for and that he half owned.  Judge Faber said the only solution was to force Mrs. Ashley to sell and split the profits with her son. 

Judge Faber said Mr. Ashley made an “unpleasant tactical attempt” to question his mother’s mental health and he was “less than wholly reliable as a witness,” but that his mother had “told the court substantially more untruths than he did” and her account of events had been “thoroughly undermined.”  The judge established a timetable for estate agents to visit the house and removers to repossess Mr. Ashley’s belongings.

See Paul Cheston, Pensioner Forced to Quit £1.2m Home in Feud With Her Son, London Evening Standard, Dec. 16, 2014.

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

December 17, 2014 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

New Case: Ferguson v. Critopoulos

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In Ferguson v. Critopoulos, the Alabama Supreme Court held that a will beneficiary met the burden to show that the decedent provided for spouse outside the will.  The decedent’s will, executed nine years before his second marriage, gave his residuary estate to his first spouse who predeceased him, and made her three children alternate beneficiaries.  After her death, he remarried but did not change his will. His surviving spouse then claimed an omitted-spouse’s share under a statute giving an intestate share to the spouse “unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.” Ala. Code § 43–8–90. The trial court held that the intent was not proven, and the supreme court reversed, setting out guidelines for determining when a transfer outside of a will is in lieu of a testamentary provision. In this case, the testator changed the beneficiary of insurance policies and retirement accounts to the new spouse and considered changing his will but did not, all of which showed that the testator provided for the spouse outside of the will. Ferguson v. Critopoulos, No. 1130486, 2014 WL 4666935 (Ala. Sept. 19, 2014).

December 17, 2014 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Argument Over Ownership Resolved With Proof of Insurance

InheritanceAfter the death of Kristi Keland, a probate dispute arose between her sister Henni and her husband Tres over who would receive a collection of Native American baskets. Henni argued that she was left the baskets in her sister's will, which left Kristi's personal property to her sisters. Tres argued that the baskets were not Kristi's property, but his, because they were owned by Indian Rock Land & Cattle, LLC, which was controlled by Kristi and Tres.

In Keland v. Moore, an Arizona appeals court in an unpublished opinion held that Tres provided sufficient evidence of ownership of the baskets by providing an insurance policy held by the LLC which covered the valuable baskets, in addition to his testimony.

See Luke Lantta, Insurance as Evidence of Ownership, Bryan Cave Fiduciary Litigation, Dec. 10, 2014.

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

December 17, 2014 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2014

New Case: Fabian v. Lindsay

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In Fabian v. Lindsey, the Supreme Court of South Carolina held that a third-party beneficiary has a cause of action for the lawyer’s error in defeating client’s intent.  

After the death of the decedent’s surviving spouse, one-half of the trust property was given to the children of his surviving spouse and the other half to his brother if he survived the decedent, which he did; if he did not, one-quarter to brother’s child and one-quarter to Erika, the child of another brother who predeceased the decedent. The brother died a few weeks after decedent and by the terms of the trust half of the trust remainder passed through his estate to his child. Erika would receive nothing even though two of the three trustees, including the widow and the decedent’s financial advisor, agreed that the trust failed to carry out the decedent’s intent to treat his brother’s child and Erika equally. Erika brought a proceeding to reform the trust, which ended with her accepting a settlement in which she specifically did not release any malpractice claims against the firm that drafted the trust.  She then brought an action for malpractice and breach of contract against the law firm that drafted the trust instrument.  The trial court granted the defendants’ motion to dismiss for failure to state a claim, but on appeal the Supreme Court of South Carolina reversed, recognizing for the first time a cause of action in both tort and contract by a third-party beneficiary of an estate planning document against a lawyer whose drafting error “defeats or diminishes the client’s intent.” Two justices concurred in the recognition of the tort action but not of the contract action; and they and another justice stated that the burden of proof, not discussed by the majority opinion, should be clear and convincing evidence. Fabian v. Lindsey, No. 27460, 2014 WL 5462562 (S.C. Oct. 29, 2014).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

December 16, 2014 in Estate Administration, Estate Planning - Generally, New Cases, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Accessing Online Accounts of Deceased Relatives

LaptopEstate Planning for digital assets and accounts has been a recent focus with states considering, and Delaware passing, laws that allow for relatives to access online accounts after the death of the account holder. One relatively simple option is for an account holder to either give passwords and account information to a trusted person or keep a list of the information in a secure place to be retrieved when needed. However, this method takes both trust and planning. Some common account providers have their own procedures for family members to retrieve digital data of a deceased loved one.

For Facebook accounts, the account can be either deleted or memorialized with proof of death and relation to the deceased. Other social media accounts, such as Twitter, Instagram, and LinkedIn accounts can be closed through direct contact, proof of identification of the requester, and proof of death of the account holder. To access a relative's Google account, one may mail or fax their identification and the deceased's death certificate to request access, but approval is not guaranteed. However, Yahoo mail accounts only offer the ability to close the account, but will not release any emails.

See Mariella Moon, What You Need to Know About Your Digital Life After Death, Engadget, Dec. 10, 2014.

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

December 16, 2014 in Estate Administration, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, December 15, 2014

New Case: In re Estate of Scherer

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The Supreme Court of Wyoming refused to recognize the doctrine of equitable adoption on the plain meaning of Wyo. Stat. § 2-4-104, which provides that “stepchildren and foster children and their descendants do not inherit.”  The court also supported its conclusion by noting that one of the purposes of the probate code is to simplify and clarify the administration of the law, which the complexity inherent in applying the concepts of equitable adoption would undermine. In re Estate of Scherer, 336 P.3d 129 (Wyo. 2014).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

December 15, 2014 in Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0) | TrackBack (0)

Understanding Estate Planning

Estate-plan

While founders have vision, comprehend risk and reward, and are good at making decisions, they unfortunately do not understand the importance of having an estate plan. 

Because an estate plan is more than just a document that disposes of assets at death, maybe it is time to reframe the objective into terms a client can understand.  Just as a business plan is a road map to long-term success, an estate plan is a road map to achieving peace of mind.  Since there is no escaping death and taxes, we might as well help our clients plan for both. 

A great estate plan, like a great business plan, will provide a road map to success.  In order to create a plan, a client and his advisors should understand the client’s current personal and financial situation.  There are several basic documents that should be included in almost all plans: (1) a financial power of attorney; (2) a health care power of attorney; (3) a health care directive or living will; (4) a will detailing how assets should be distributed; and (5) beneficiary designation forms. 

Once your client understands the importance of planning, you must bring all the elements together into a working plan.  Your objective is to help the client develop, review and execute basic estate planning documents. 

See Lorri Ann Dunsmore, A Different Kind of Business Plan, Wealth Management, Dec. 10, 2014.

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

December 15, 2014 in Estate Administration, Estate Planning - Generally, Non-Probate Assets, Wills | Permalink | Comments (0) | TrackBack (0)

More Questions Than Answers In Affairs of $2 Million Estate

Question1The questions continue to pile up and answers are few in the events surrounding the estate of John P. Sheridan, Cooper Health System's CEO, and Joyce Sheridan. The New Jersey couple died on September 28 after being pulled from their home, which was on fire, with stab wounds on both. Additional information on the events of that night have not been released and while Joyce's death has been determined to be the result of homicide, the determination for John's death is still pending and being investigated. A will for the couple is yet to be found, and the application by one of the couple's sons to be named administrator of his parents' $2 million estate has been removed without any reason given.

See Angelo Fichera, Sheridan Son No Longer Seeking to Handle Parent's Estate, The Inquirer, Dec. 11, 2014.

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

December 15, 2014 in Current Affairs, Current Events, Estate Administration, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, December 14, 2014

Clarifying the Digital Asset Issue

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If you search for the late actor and comedian Robin Williams on Facebook you will likely come across an invitation to “connect” with him.  However, this could be difficult as the beloved Academy Award winner passed away four months ago.  His page is now set up to receive tributes from his large fan base.

While Williams’ page is dedicated to him for well-wishes, it would be almost impossible for your family or estate executors to access your social media, email and online entertainment or financial accounts.  Under current law, it is illegal to access another’s digital accounts without the person’s prior approval, and many online companies keep the deceased’s logins and passwords confidential, even from family members. 

State Senator Dorothy Hukill seeks to clarify this digital-age issue.  The Port Orange Republican has filed a bill that would allow designated individuals to access the digital accounts of people who have died or become incapacitated.  This year, Delaware became the first state to pass such a law.   

Under Hukill’s bill, an executor, personal representative, trustee or guardian would treat electronic property as part of an estate’s assets, and those representatives could inventory the digital accounts as with other physical assets and dispose of them properly.  In order to gain access to the accounts, a request would be sent to companies that act as custodians, such as Google or Facebook. 

See Access Bill: Clarify Online Life After Death, The Ledger, Dec. 13, 2014. 

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

December 14, 2014 in Estate Administration, Estate Planning - Generally, New Legislation, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Heirs of Fraudulent Fortune File Legacy Lawsuit

GavelSeven heirs of Judge Leander Perez have sent shockwaves through the Plaquemines Parish community in Louisiana. The heirs have brought a legacy suit against major oil companies for pollution of land owned by the Paris family. The lawsuit in itself it not shocking as there have been many previously successful suits of the kind, but the suit is surprising considering the family's previous high profile scandals. The family was wealthy and politically powerful in the parish prior to the discovery that the family's wealth came from oil leases and royalties that were fraudulently acquired by Judge Perez and kept secret for over 50 years.

See Mike Perlstein & David Hammer, Tainted Legacy: Heirs to Ill-Gotten Fortune Back in Court Seeking More, WWL, Dec. 12, 2014 

December 14, 2014 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)