Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Monday, July 28, 2014

Planning For Your Kids

Children2It is important to have a plan in place for your children in the event of your death.  Who will be your child’s guardian and who will be the guardian of your estate?  While these difficult decisions may not have one right answer, there are several important considerations to take into account when you are making your will and planning your child’s future.

Although you are allowed to designate someone as the guardian of your child, in most states the court has the final decision as to who will be the most appropriate caregiver.  “It’s at the discretion of the court as to what’s in the best interest of the child.”   When drafting your will, it is important to take into consideration that your money and your child can go in opposite directions.  Two types of guardians can be specified in your will—the guardian of the child, and the guardian of the property of the estate.  Though they can be the same person, that is not a requirement.  “Naturally, the answer is different for everyone and depends on what you want for your child as well as his or her caregiver . . . The person who looks after and cares for your child may not be the same person you’d want handling his or her financial life, as they may require a different skill set.  To control risk, some people decide to keep the roles separate.” 

The best way to do this is by creating a trust.  In establishing a trust, you can be explicit about how those funds are to be used for the care and education of the child.  When thinking about the appropriate dollar amount to leave for your child’s care, remember that children are expensive.

See Kathryn Tuggle, How to Give Away Your Kids, The Street, July 28, 2014.

July 28, 2014 in Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Saturday, July 26, 2014

Man Charged With Wife’s Murder Loses His House, All Three of Them

JailAfter Donna Honaker was murdered in her home in Ohio, her estate brought suit to collect the assets that her husband would have inherited under more normal circumstances. The husband, Royce Honaker, has been charged with Donna’s murder, partly based on the 911 call he placed telling authorities he had just killed his wife. Royce did not fight the estate, but rather stated from the beginning that he wanted his portion to go to his four children. A county probate judge has given Royce’s court appointed guardian settlement authority in the case. Donna’s estate includes three real estate properties, a $105,000 life-insurance policy, and two bank accounts. Royce will maintain ownership of his pension and four vehicles.

See Ed Runyan,  Estate of Killed Woman Finalized in Trumbull Probate Court, Vindy, July 23, 2014.

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

July 26, 2014 in Estate Administration, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Friday, July 18, 2014

Uniform Fiduciary Access to Digital Assets Act

ComputerThe Uniform Law Commission has approved the new Uniform Fiduciary Access to Digital Assets Act. With huge technology advancements changing where assets are stored, a legal update is needed to accommodate the increase in digital assets. The Act adopts “media neutrality”, which means that the individuals who would gain access to tangible property as a fiduciary after the owner dies, such as personal representatives, or during the owner’s life, such as a guardian, will now also have access to the digital assets. However, if the owner has previously expressed a desire that the assets be kept private, then those wishes will be honored.

See, Uniform Fiduciary Access to Digital Assets Act Approved, Uniform Law Commission, July 16, 2014.

July 18, 2014 in Estate Administration, Estate Planning - Generally, Guardianship, New Legislation | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

Minnesota Addresses Thefts by Court-Appointed Guardians

MinnesotaAfter the discovery of abuse by court-appointed guardians in Minnesota, the state audited 24 random accounts handled by Alternate Decision Makers, Inc. The findings uncovered problems with ten accounts ranging from missing documents to possible indications of theft. Allegations of theft by the guardians include unreasonably high fees accessed, missing property, and personal items sold off after the protected person died. The suspicious accounts discovered by auditors are being sent to judges for review and to be remedied.

See James Eli Shiffer, Conservator’s Thefts Prompted 24 State Audits, Star Tribune, July 14, 2014.

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

July 15, 2014 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Guardianship, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Friday, July 11, 2014

Father's Indecencies Funded by Disabled Son's Trust Fund

Laeske

An Appleton man has been charged with stealing more than $360,000 from his disabled son’s trust fund to pay for his drugs, pornography and vacations. 

Police say Todd Laseke, 48, transferred $502,672 from the trust fund into his personal bank accounts between 2008 and 2011.  While Laeske was permitted to take a $3,000 monthly allowance, almost $400,000 was spent beyond his stipend.  Beginning in October 2010, the register in probate asked Laseke to explain this “substantial” spending, however, he did not comply.  Officials subsequently appointed a guardian ad litem to represent Laseke’s son and investigate.  Through subpoenaed documents, it was discovered that money was being spend on trips to Florida, a minivan as well as marijuana and cocaine. 

On Tuesday, Laseke filed paperwork for a court-appointed attorney.  The court commissioner set a $100,000 signature bond and he was not taken into custody.

See Ariel Cheung, Police: Man Used Disabled Son’s Trust Fund for Drugs, Porn, The Northwestern, July 8, 2014.

July 11, 2014 in Estate Planning - Generally, Guardianship, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, July 10, 2014

Estate Planning Documents Every College Graduate Should Have

GraduationAfter graduating from college and entering the coveted “real world,” drafting an estate plan is not necessarily on the top of everyone’s to-do-list.  However, after starting your first job, preparing an estate plan is vital.  Below are five documents that should be part of your estate plan:

  1. Durable Financial Power of Attorney. This is where you name an agent to act on your behalf concerning your personal financial affairs.  Generally, your agent would step into this role if you were unable to handle your own affairs.  This can be a family member, a close friend, or a private fiduciary. 
  2. Health Care Power of Attorney. This is similar to the Financial Power of Attorney, except it is used for decisions concerning your health care.  You must name an agent who can assist with placement, if you must be moved to a rehabilitation facility, and is often given the authority to follow your wishes regarding life-sustaining treatment. 
  3. Last Will and Testament. A will allows you to provide to whom and in what manner your assets will be distributed upon your death. 
  4. Beneficiary Designation. Make sure there is a beneficiary designation on your 401(k)s and IRAs.  A beneficiary designation states that upon your death, the assets held in that account pass immediately to the named individual.  If you do not have a beneficiary designation, the funds will be distributed as part of your estate. 
  5. Beneficiary Deed. This allows you to name an individual who will receive your interest in real property at your death.  If you are married, a beneficiary deed would only be used at the death of the second spouse.  There are times when use of a beneficiary deed may not be in your best interest (i.e., if you want the property to be distributed to minor children.)

See Amber Curto, Five Estate Planning Documents Every Young Professional Should Have, Nat Law Review, July 7,  2014.   

July 10, 2014 in Estate Planning - Generally, Guardianship, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2014

Article on End-of-Life Care in Connecticut

HealthErin A. O’Neill, recently published an article entitled, End-of-life care in Connecticut: whose decision is it and when does the conversation begin?, 27 Quinnipiac Prob. L.J. 317-343 (2014). Provided below is an excerpt from the article:

A 49-year-old woman has been suffering from multiple sclerosis for more than twenty years. Her condition continues to worsen. She can no longer sit up, swallow, or speak well enough to be understood by others. One year ago, she developed respiratory arrest, became cyanotic, and was hospitalized. She was given a tracheostomy and put on a respirator. To this day, the body's secretions that collect in the tube must be suctioned from the tube every couple of hours, requiring the removal of her respirator, which prevents her from breathing. She is semi-comatose, and only her brain stem, which controls her heartbeat, body temperature, and some reflexive actions, functions. She cannot see and it is believed that she cannot hear. After two months of treatment, she has shown no sign of improvement. At best, she can be described as awake but unaware. The prognosis for improvement is hopeless, but she is still kept on the respirator. 1

This woman has no living will or other advance directive; therefore, her father has been appointed as her conservator 2 by the probate court. Her father is faced with the difficult decision of whether to sustain his daughter's life in such a hopeless state, or remove the respirator and let her pass. He decides to ask the hospital to remove the respirator. 3 The hospital refuses to honor the request without a court order, and the matter is brought to the probate court. 4

July 8, 2014 in Articles, Disability Planning - Health Care, Guardianship | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

Article on The Uniform Power of Attorney Act

Vallario

Angela M. Vallario (University of Baltimore School of Law) recently published an article entitled, The Uniform Power of Attorney Act: Not A One-Size-Fits-All Solution, 43 U. Balt. L. Rev. 85-118 (2014).  Provided below is a portion of the author’s introduction:

A power of attorney is a staple of the modern estate plan, providing a simple way to avoid a guardianship and allowing an agent to manage a principal's assets when necessity or incapacity requires it.  The nature of the power of attorney is to give an agent legal authority to act on the principal's behalf for financial matters.  However, abuse by agents has caused reluctance among third parties to accept power of attorney documents, and this, in turn, has caused uproar for estate planners and their clients. 

In response to this agent abuse and subsequent third party reluctance to accept power of attorney documents, the nation's attorneys have been forced to share war stories, as well as tricks and solutions, in an effort to minimize the problems and embarrassment created when power of attorney documents are prepared and executed one day and not honored the next. In some cases, attorneys have even begun to advise their clients to use certain financial institutions likely to honor the legal-drafted document and to avoid those institutions reluctant to do so. Additionally, attorneys have been forced to contact the legal departments of banks, threaten suit, and in some situations use a costly and time-consuming alternative, the guardianship.

July 3, 2014 in Articles, Estate Administration, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2014

Summer Vacation Checklist

Summer

Summer season is in full swing, which means travel and vacations are a high priority on everyone’s list.  One thing that may not make a traveler’s to-do list is estate planning; however, it is just as, if not more important than the vacation you plan to take. 

Because Americans spend more time planning their vacation than their estate, knowing what would happen to your family if something happened is critical to traveling with peace of mind.  Before embarking off on vacation, check off a few of these items:

  • Guardianship for minor children. If you have minor children, it is critical to choose guardians for your kids.  Give your children’s caretaker the legal short-term guardianship needed to ensure they could make decisions for your kids in an emergency, and lay out a plan for long term guardianship.  These documents should stand alone, and not be buried in your will.
  • Complete an estate plan. Now is the time to complete your estate plan to make sure your children do not have to navigate the waters of the probate system alone.
  • Update any existing plans. If something has changed since you last made your estate plan, now is the time to make an update.
  • Review beneficiaries. Beneficiaries of your retirement accounts, life insurance and other assets should be reviewed frequently to ensure the proper beneficiaries are named. 
  • Organize a legacy drawer. Make sure to have an organized file of account statements and your full estate plan before you leave.  Include a list of usernames and passwords to your online accounts and tell your family where they can locate this file.

See Bonnie Bowles, 7 Must-Do’s Before Your Summer Vacation, Examiner, June 25, 2014. 

June 26, 2014 in Estate Planning - Generally, Guardianship, Non-Probate Assets, Wills | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 11, 2014

Casey Kasem Must be Fed, Judge's Orders

Casey KasemAs I have previously discussed, a judge recently put Casey Kasem’s daughter, Kerri Kasem, in control of decisions on his medical care. Now, a California judge has made another ruling in terms of Kasem’s care. After Kerri implemented end-of-life measures, which stopped Kasem’s doctors from providing nutrition, hydration and medication, the judge ordered that all three must be reinstated.  A court-appointed-attorney was instructed to visit Kasem and his doctors, and report back at a hearing scheduled for Friday.

See Martha Neil, Judge Says ‘Top 40’ Radio Personality Casey Kasem Must be Fed, Hydrated and Medicated, ABA Journal, June 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.

 

 

 

June 11, 2014 in Current Affairs, Disability Planning - Health Care, Elder Law, Guardianship | Permalink | Comments (0) | TrackBack (0)