Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Wednesday, October 22, 2014

Avoid These Estate Planning Errors


While many people fail to plan for death, even those who make the effort to plan their estates often neglect to follow through or update their plans as changes occur in their lives.  So that your estate plan may remain a valuable asset for you and your heirs, avoid these common mistakes:

  • Thinking the state will handle everything. It is a common misconception to think that trusts are for the wealthy and you have covered your bases with a will.  However, with a will, your estate may have to go through a public probate process and can be expensive.  If you have a trust, it eliminates the probate process for assets and ensures privacy.
  • Your work is done after a trust is created. Many people forget to fund their revocable trust.  The trust does not exist unless it holds assets. 
  • Settling and forgetting. This means that clients will often set up their estate planning documents and rarely look at them again.  Life changes and your needs, as well as your children’s, may be different.  Thus, updating a will is crucial.
  • Your assets will follow your trust or will. Beneficiary forms govern retirement accounts and insurance policies; the assets do not flow through your trust or will.  Whomever you designated as your beneficiary will get the money when you die.
  • Not considering your children’s needs. Each child can be different, and there may be times to treat them differently when it comes to disbursing their inheritance.

See Barry Glassman, Trust Bust: Steer Clear of the 8 Biggest Estate-Planning Mistakes, CNBC, Oct. 22, 2014.

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

October 22, 2014 in Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

New Estate Planning Tool: Estate Assist

Digital lock

A new online estate planning tool aims to help users store all of thier online passwords, social media accounts, digital health records, banking information, and other paperwork. 

Estate Assist works as an online safe deposit box that stores your online and offline information in one place.  In addition to helping users choose which accounts to add, Estate Assist uses an API from Intuit to automatically pull linked accounts and prompt users to change updated information in Estate Assist.  Once all of your assets have been uploaded, users can choose to share the accounts with designated trustees such as friends, family, or their lawyer.   

October 22, 2014 in Estate Administration, Estate Planning - Generally, Technology, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Article on Probate

Horton-davidDavid Horton (University of California, Davis - School of Law) recently published an article entitled, In Partial Defense of Probate: Evidence from Alameda County, California, Georgetown Law Journal, February 2015, Forthcoming. Provided below is the abstract from SSRN:

For five decades, probate — the court-supervised administration of decedents’ estates — has been condemned as unnecessary, slow, expensive, and intrusive. This backlash has transformed succession in the U.S., as probate avoidance has become a booming industry and contract-like devices such as life insurance, transfer-on-death accounts, and revocable trusts have become the primary engines of intergenerational wealth transmission. Despite this hunger to privatize the inheritance process, we know very little about what happens in contemporary probate court. This Article improves our understanding of this issue by surveying every estate administration stemming from individuals who died in Alameda County, California in 2007. This original dataset of 668 cases challenges some of the most entrenched beliefs about probate. For one, although succession is widely seen as a tranquil process in which beneficiaries settle disputes amicably and pay a decedent’s debts voluntarily, both litigation and creditor’s claims are common. In addition, attorneys’ and personal representatives’ fees are far lower than assumed. The Article then uses these insights to critique the demand for probate avoidance, to contend that probate’s cautious approach to creditors should also govern non-probate transfers, and to suggest reforms to the probate process.

October 22, 2014 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Estate Planning Considerations for Wine Collections

WineCollections create unique estate planning considerations, and collections of alcohol call for even more concentrated estate planning strategies. For the administrator of a deceased wine collector's estate, it is important to consider specific state laws on the sale of an estate's collection of wine. Generally, alcohol sales in the U.S. must go from manufacturers and importers to distributors to retailers. This complicated system of regulation for alcohol sales creates difficulty for estates trying to sell wine collections and other alcohol to a retailer. However, some states have enacted legislation in this area that eases the burden on estates of wine collectors. North Carolina allows for an estate to get a permit to sell the alcohol to an end user, which can be facilitated by an auction house.

See Ian Holzhauer, Wine Collectors Face Unique Estate Planning Challenges, Tailored Estate Planning, Oct. 14, 2014.

October 22, 2014 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 21, 2014

Haunting Life Insurance Mistakes


With Halloween right around the corner, parents and grandparents are usually focused on costumes and candy rather than life insurance policies. 

Life insurance can serve multiple purposes, and for most people is a tool for income replacement.  Often a term-life policy, which provides a preset death benefit when the insured person dies, is all that is needed.  Unfortunately, this is not enough to completely forget about the policy.  Below are some of the costly life insurance pitfalls that haunt many of us:

  • Rate Increases. With a level premium, term-life policy, you are guaranteed that the cost of the plan will not go up during the initial coverage period.  After that, be aware.  When the policy is up, you could get an invoice for the latest premium that is many multiples of what you had previously been paying. 
  • Affinity Groups. Some professional associations provide life insurance to their members at group rates. However, the price is not necessarily less than the open market.  There are also hidden costs that could surprise you too.
  • Beneficiary Designations. It is vital you keep beneficiary designation forms up-to-date.  For example, make sure to file an amended form if you get married or divorced or if your spouse dies. 
  • Estate Tax. If you are the insured and the policy owner, the proceeds will be considered part of your taxable estate.  Hence, those funds are added to everything else you leave behind.  If the total is more than the tax-free amount and you leave it to anyone except your spouse or charity, it will be subject to estate tax.  You can avoid estate tax on life insurance proceeds is to designate a family member who will receive the proceeds of the policy the owner. 

See Deborah L. Jacobs, Five Life Insurance Mistakes That Can Haunt You, Forbes, Oct. 20, 2014.

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

October 21, 2014 in Estate Administration, Estate Planning - Generally, Estate Tax, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Lawsuit Over Handling of Holographic Will

Holographic will

An Austin lawyer and her firm have been sued by fifteen family members, alleging she failed to hire a handwriting expert to show their deceased matriarch’s will was forged and they should have received more from the estate. 

The lawyer representing the plaintiffs, William Robertson, commented, “My clients disputed it from day one.  The allegation against the lawyer in this case is that there should have been a careful expert examination of the handwriting.  That was not done.” 

The October 10 original petition and request for disclosure said the plaintiffs hired Holly Gilman and her firm to contest the handwritten will of decedent Carolina Torres.  A woman named Lisa Navarro offered the will for probate.  Gilman contested the will, arguing it “was fabricated and provided that Lisa Navarro was to receive the largest portion of the assets of the estate of Carolina A. Torres.”  At the will contest hearing, no expert testimony was provided, rather writing samples were utilized. 

The court ruled against the plaintiffs and found the will to be valid.  The plaintiffs subsequently hired a new lawyer and continued to probate the case.  The court then made a final ruling and distributed assets in accordance with the will.  However, Robertson noted that the “distribution in the will was real lopsided.”   

After a handwriting expert was hired, the plaintiffs became aware that the holographic will of Carolina A. Torres was forgery and that Lisa Navarro had perpetrated fraud.  The plaintiffs are now suing for negligence, gross negligence and breach of contract.

See Angela Morris, Handling of Handwritten Will Lands Lawyer In Legal-Mal Lawsuit, Texas Lawyer, Oct. 17, 2014.

October 21, 2014 in Estate Administration, Estate Planning - Generally, Malpractice, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Probate is the New Planning

Last will and testament

Surveys show that many people decide to engage in estate planning in order to avoid probate.  Despite these efforts, the majority of Americans will end up in probate. 

With the 2.5 million people that die each year in the U.S., combined with the estimated 55 to 70 percent of Americans who do not have an estate plan or simple will, it is clear that there will be no shortage of probate proceedings.  These statistics are expected to increase over the next ten to twenty years due to the aging baby boom population.  Estate attorneys will have a strategic advantage into this new reality.  Although many estate-planning attorneys build their businesses around trust planning, they may need to expand their skill sets to capture a share of the probate market.  Since probate is administratively intensive, attorneys may need to hire additional staff with a probate background and/or litigation experience.  Some firms divide these areas of responsibility based on each attorney’s specialized expertise.

See Mary Merrell Bailey, The Shift from Estate Planning to Estate Probating, Wealth Management, Oct. 20, 2014.

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

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

Families of Uncle Buck Actor, Director Opposed to Remake

MovieA remake of Uncle Buck, which starred John Candy and was directed by John Hughes, may be headed to television on ABC. However, the families of the late actor and director have expressed strong opposition to the project. The families have indicated that they do not believe their deceased relatives would appreciate the remake, especially since Hughes did express disapproval of the first remake of Uncle Buck into a series, which was attempted in 1990.

See Angie Han, 'Uncle Buck' TV Series Gets Disapproval of John Hughes and John Candy Families, Slash Film, Oct. 10, 2014.

October 21, 2014 in Estate Administration, Film | Permalink | Comments (0) | TrackBack (0)

Funeral Homes and DNA Storage Services

TesttubeSome funeral homes are beginning to offer DNA storage services. Having the DNA extracted from the deceased and securely stored for up to 15 years will be available soon from a Beaufort County, South Carolina funeral home for roughly $575. These services are intended to address issues that necessitate DNA testing that may arise after a person's death, such as discovering family medical history or paternity testing.

See Traci Washington, Funeral Homes in Beaufort to Offer DNA Storage, CBS 3 Springfield, Oct. 10, 2014.

October 21, 2014 in Death Event Planning, Estate Administration | Permalink | Comments (0) | TrackBack (0)

Picture Choice Almost Cancels Memorial Service

FlowersThe memorial service for a Toronto man was almost canceled as a result of his appearance in his obituary picture. In the photo, Larry Frazer is smiling with his hair cut into a mohawk and wearing a shirt prominently displaying the name of the popular TV show “Sons of Anarchy.” Frazer's widow was called by the church where the service was planed to be held, and told that the service was canceled due to the photo. The family was greatly upset by the news, but a later call from the church reinstated the service and included an apology for the previous call.

See Hull & Hull LLP, Obituaries, Funerals, and Grave Markers, Toronto Estate Law Blog, Oct. 3, 2014.

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

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