Wills, Trusts & Estates Prof Blog

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

Tuesday, March 28, 2017

Article on Wills, Trusts, Guardianships, and Fiduciary Administration

SurveyMary F. Radford recently published an Article entitled, Wills, Trusts, Guardianships, and Fiduciary Administration, 68 Mercer L. Rev. 321 (2016). Provided below is an abstract of the Article:

This Article describes selected cases and significant legislation from the period of June 1, 2015 through May 31, 2016 that pertain to Georgia fiduciary law and estate planning.

March 28, 2017 in Articles, Estate Planning - Generally, Guardianship, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Monday, March 13, 2017

CLE on Advanced Elder Law & Guardianship Law

CLEThe State Bar of Texas is holding a CLE entitled, Advanced Elder Law & Advanced Guardianship Law Courses 2017, which will take place April 6–7, 2017, at the Westin Memorial City Hotel in Houston, Texas. Provided below is a description of the event:

Advanced Elder Law Course Topics Include:

  • Anatomy of a Will
  • Case Law Update: Texas and National
  • Dealing with MERP Claims through Probate Proceedings
  • MERP: It Ain't a Lien and Here's Why
  • How to Deal with the Transition between VA and Medicaid
  • Title Issues on Gift Deeds, Lady Bird Deeds, and Transfer on Death Deeds
  • Client Self Defense Against Abuse, Disputes and Neglect
  • Medicaid Applications: The View from 30,000 Feet
  • Handling Odd Types of Property
  • BYOD: Technology Tips for Elder Law Attorneys
  • Communicating Complicated Elder Law Concepts to Clients Who May Have a Hard Time Understanding Complicated Concepts

Advanced Guardianship Law Course Topics Include:

  • What's New in Guardianship
  • Tool Kit for Contested Guardianships
  • Supports and Services: Alternatives to Guardianships
  • Temporary Guardianships and Other Remedies v. TROs
  • The Interaction of POAs in Guardianships
  • Runaway Ad Litems
  • Fees and Costs in Guardianships
  • Effective Use of Management Trusts with or in Lieu of Guardianships: Guardians of the Estate
  • Creditors' Claims in Guardianships

Reserve Your Hotel Room Now to Get the Discounted Rate!

Call the Westin Memorial City Hotel at 281-501-4300 before the March 16 deadline to get the special rate of $189/night. Inform the hotel at the time of your reservation that you will be attending the State Bar of Texas course. You can also make your reservation online!

 

March 13, 2017 in Conferences & CLE, Current Events, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Tuesday, March 7, 2017

Article on Recent Changes to Virginia Wills, Trusts & Estates Law

Wills trusts estates J. William Gray, Jr. & Katherine E. Ramsey recently published an Article entitled, Wills, Trusts, and Estates, 51 U. Rich. L. Rev. 125 (2016). Provided below is an abstract of the Article:

The 2016 General Assembly of Virginia made substantial changes in the augmented estate rights of surviving spouses. It also modified and codified the rules governing powers of appointment. Other legislation affecting wills, trusts, and estates included clarifications and technical corrections relating to such subjects as creditors' claims to life insurance and annuities, court-created trusts, protection of adults from exploitation, creditor protection for residential property, unclaimed assets, guardianships, and nonstock corporation procedure. Five decisions of the Supreme Court of Virginia addressed fiduciary conflicts, tenancies by the entirety, lost wills, contract rights in residences, and no-contest clauses.

 

March 7, 2017 in Articles, Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (1)

Sunday, March 5, 2017

Article on Virginia Filial Responsibility Law

Filial lawsSylvia Macon recently published an Article entitled, Grow Up Virginia: Time to Change Our Filial Responsibility Law, 51 U. Rich. L. Rev. 265 (2016). Provided below is an abstract of the Article:

On its face, the Virginia law seems laudable, requiring private payment by family members for costs that would otherwise be incurred by the state. However, upon closer examination, significant issues regarding implementation and fairness arise. The Virginia statute has not lain dormant, but rather has been implemented without report. Other states have recognized the futility of filial responsibility laws and have preempted such abuse by repealing their laws. Virginia should act now to either repeal the statute or amend it to ensure its citizens avoid inequitable outcomes like the defendant in Pittas.

This comment discusses the background and development of filial responsibility laws in England, the United States, and Virginia in Part I. Part II explains the purpose behind implementation of such laws while Part III discusses the problems enforcing the filial responsibility law may cause. Lastly, Part IV explains why past reasons for keeping the law are no longer valid.

 

March 5, 2017 in Articles, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Tuesday, January 31, 2017

Book on the Fundamentals of Guardianship

Fundamentals of guardianshipSally Balch Hurme recently published a book entitled, The Fundamentals of Guardianship: What Every Guardian Should Know (2017). Provided below is a summary of the book:

Serving as guardian is never simple or easy. Having the responsibility to make major life decisions for another is much more difficult than making decisions for oneself. Recent studies by the National Center for State Courts estimate that between one to two million adults are under court-supervised guardianship. The Administrative Conference of the United States estimates that approximately 75 percent of guardians are family members or friends. A constant refrain in multiple national studies and legislative reports is that once guardians are appointed they receive little instruction on how to carry out their responsibilities and have few resources to guide them.

Fundamentals of Guardianship is the much-needed, basic manual for new guardians that explains those roles and responsibilities. The court orders guardians to make decisions; Fundamentals of Guardianship explains how to make those decisions. It guides the new guardian step-by-step through the process of how to make responsible and ethic decisions, prudently manage another’s resources, avoid conflicts of interest, and involve the person under guardianship in the decision process. Fundamentals of Guardianship is the authoritative resource written by guardians with decades of experience and members of the National Guardianship Association.

This book will appeal to all who have been appointed as guardian or conservator, whether lawyer, family member, friend, volunteer, or public or private entity, as well as all those who serve vulnerable adults. Included on this list are judges, court administrators, law enforcement officials, adult protective services, social workers, health care providers, case managers, residential care administrators, long-term care ombudsmen, financial institutions, and financial advisors.

 

January 31, 2017 in Books, Books - For Practitioners, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Wednesday, January 18, 2017

Article on Trusts & Estate Law Updates

Trust and estate lawBenjamin Orzeske recently published an Article entitled, Uniform Law Updates, 31 Probate & Property 10 (Jan/Feb 2017). Provided below is an abstract of the Article:

Uniform Laws Update provides information on uniform and model state laws in development as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers. 

Much of the 2016 legislative activity involved the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). At press time, 20 states had enacted a version of RUFADAA. This innovative new law ensures that fiduciaries who manage the property of decedents and incapacitated persons will have access to on-line property and accounts as necessary. 

 

January 18, 2017 in Articles, Estate Planning - Generally, Guardianship, Technology, Trusts | Permalink | Comments (0)

Friday, January 13, 2017

CLE on Advanced Elder & Advanced Guardianship Laws

CLEThe State Bar of Texas is holding a CLE entitled, 2017 Advanced Elder Law and Advanced Guardianship Law, which will take place April 6–7, 2017, at the Westin Memorial City on 945 Gessner Road in Houston, Texas. Provided below is a description of the event:

We hope you will join us for our upcoming live presentations of 2017 Advanced Elder Law and Advanced Guardianship Law in Houston on April 6-7, 2017 at the Westin Memorial City.

We are leading off this year with our Advanced Elder Law Course on Thursday, followed by Advanced Guardianship Law Course on Friday. Together these courses provide up to 13.25 hours (including 2.5 hours ethics) of MCLE credit while discussing some of the biggest topics in the field today.

Advanced Elder Law will cover:

  • What You Don't Know Can Hurt You: Case Law and Legislative Updates
  • Dealing with MERP Claims Through Probate Proceedings
  • MERP - It Ain't a Lien and Here's Why
  • How to Deal with the Transition Between VA and Medicaid
  • Anatomy of a Will
  • Title Issues on Gift Deeds, Lady Bird Deeds, and Transfer on Death Deeds
  • Communicating Complicated Elder Law Concepts to Clients Who May Have a Hard Time Understanding Complicated Concepts
  • Client Self Defense Against Abuse, Disputes, and Neglect
  • Medicaid Applications - The View from 30,000 Feet
  • Handling Odd Types of Property

Advanced Guardianship Law topics include:

  • Tool Kit for Contested Guardianships
  • Supports and Services - Alternatives to Guardianships
  • Temporary Guardianships and Other Remedies v TROs
  • The Interaction of POA in Guardianships
  • Runaway Ad Litems
  • Fees and Costs in Guardianships; A Trap for the Unwary
  • Effective Use of Management Trusts With or in Lieu of Guardianships: Guardians of the Estate
  • Creditors' Claims in Guardianships

Plus, attending Advanced Guardianship Law will qualify you for Attorney ad Litem certification!

Select rooms have been reserved at the Westin Memorial Hotel for State Bar registrants at the special rate of $189/night. Reserve your room by calling the hotel at 281-501-4300 and asking for the State Bar of Texas room block by March 16th or use the link above.

 

January 13, 2017 in Conferences & CLE, Elder Law, Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0)

Wednesday, November 2, 2016

Article on Evolution of Guardianship Law in Rhode Island

Guardianship lawMark B. Heffner recently published an Article entitled, From Idiots and Lunatics to Incapacitated Persons and Respondents: The Evolution of Guardianship Law in Rhode Island, 21 Roger Williams U. L. Rev. 554 (2016). Provided below is a summary of the Article:

This article will first examine Rhode Island's guardianship laws during the more than 200 years from Rhode Island's colonial era until 1985, and label this time as the “Dark Period.” In the next sections, entitled “First Light” and the “Dawn,” this Article will discuss how, after this over 200 year period of relative dormancy, Rhode Island's guardianship evolved rapidly over the comparatively short period between 1985 through 1996. This article will conclude with a section entitled “After the Dawn,” which will examine what has occurred (and has not occurred) in the twenty years following this period of rapid change.

Rhode Island's guardianship laws and its changes will be viewed through the prism of two areas: the grounds for the initiation of a guardianship proceeding and the procedural rights of the individual for whom the guardianship is sought. Guardianships, of course, involve many other aspects and requirements; however, focusing on these two significant areas will provide most vivid insight to Rhode Island's guardianship laws as they once existed and as they now are.

To highlight this evolution, this article will focus on provisions of Rhode Island's statutes pertaining to guardianship of adults. For, as the Rhode Island Supreme Court pointed out in Trustees of House of the Angel Guardian, Boston v. Donovan, “in this state the probate court derives its jurisdiction wholly from the statute.” Accordingly, this article will emphasize statutory provisions, discussing reported decisions of the Rhode Island Supreme Court which interpret the enactments of the General Assembly.

November 2, 2016 in Articles, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Saturday, September 10, 2016

Personal Representative of Estate Cannot Waive Privilege Between Guardian & Attorney

Attorney client privilegeAttorney-client privilege might be the most ancient of the confidential communication privileges. The privilege was codified in Florida at § 90.502. As time passed, the law evolved, creating an exception to privilege—the fiduciary-duty exception for when the client was a fiduciary and the lawyer’s services were for a third party. In 2011, however, Florida enacted § 90.5021, the fiduciary-lawyer client privilege, which appeared to infringe on the exception. This Section defines who qualifies as a fiduciary and further explains that the fiduciary-lawyer relationship would be protected just the same as a non-fiduciary relationship. Additionally, the Section explains that only the fiduciary is considered a client of the lawyer.

In Bivins v. Rogers, the plaintiff was the personal representative of his father’s estate. The defendant was one of several guardians appointed to exercise the father’s rights. After his father’s death, the plaintiff sued, seeking production of communication between the defendant and his attorneys and accountants. The question to the court was whether § 90.2051 precludes someone besides the client from waiving privilege when the client is a fiduciary. The court held that it does. This ultimately suggested that there was no ambiguity about the statute’s validity, making the fiduciary-duty exception irrelevant.

 See Jordan Hammer, Personal Representative Cannot Waive Privilege Between Guardian and Attorney, Florida Probate Lawyers, September 8, 2016.

September 10, 2016 in Estate Planning - Generally, Guardianship, New Cases, Professional Responsibility | Permalink | Comments (0)

Thursday, June 30, 2016

The Florida Fiduciary Access to Digital Assets Act

Digital assetsAs the age of technology flourishes, digital media assets are becoming increasing popular. The Florida Governor signed the Florida Fiduciary Access to Digital Assets Act into law on March 10, 2016. The Act allows people to plan for the management and disposition of their digital assets, such as emails, text messages, and social media accounts, by vesting fiduciaries with the authority to access, control, or copy these assets. Additionally, the Act has rules of priority for the disclosure documents where an online tool of disclosure will trump a user’s estate planning documents. Further, a custodian must comply with a request for disclosure of the digital assets when necessary. The Act goes into effect on July 1, 2016, and will apply to all fiduciaries acting under a will, trust, or guardianship.

See Jennifer J. Wioncek & Michael D. Melrose, Florida Passes Fiduciary Access to Digital Assets Act, Wealth Management, June 27, 2016.

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

June 30, 2016 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, New Legislation, Trusts, Wills | Permalink | Comments (0)