Wills, Trusts & Estates Prof Blog

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

Saturday, June 16, 2018

CLE on Estate Planning from A to Z

CLEThe National Business Institute is holding conference entitled, Estate Planning from A to Z, on Tuesday, June 26, 2018, at the Sheraton Wilmington South Hotel in New Castle, Delaware. Provided below is a description of the event:

Program Description

A Detailed Overview of the Estate Planning Procedure and Strategy

Do you have all the knowledge and skills you need to draft tailored testamentary documents and minimize taxable estate for each of your clients? This comprehensive course will become your ultimate guide to estate planning. You will receive tips, sample forms and answers to your most pressing questions to help you excel. Get the latest knowledge on effective will and trust planning techniques - register today!

  • Stave off conflicts of interest with a clear determination of who your client is from the start.
  • Get practical will and trust drafting skills to speed up the process and give the testator's last wishes power.
  • Minimize the taxable estate with effective tax planning techniques.
  • Explore the functions and mechanics of major trust structures - and make certain you choose the right tool for each job.
  • Make sure your remarried and unmarried clients know the default inheritance laws and help them make sure the right beneficiaries are assigned.
  • Help your clients make the tough medical decisions regarding long-term care, end-of-life and organ donation.

Who Should Attend

This basic-to-intermediate level seminar is designed for:

  • Attorneys
  • Estate and Financial Planners
  • Trust Officers
  • Paralegals
  • Accountants

Course Content

  1. Client Screening and Intake
  2. Key Elements of Effective Wills
  3. Basic Tax Planning
  4. Documenting Long-Term Care, Incapacity and End-of-Life Decisions
  5. Trusts 101
  6. Planning for Unmarried and Remarried Couples
  7. Ethical Considerations

Continuing Education Credit

Continuing Legal Education

Credit Hrs State
CLE 6.00 -  DE*
CLE 7.20 -  NJ*
CLE 6.00 -  PA*

Financial Planners – Financial Planners: 7.00

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 7.00 *

* denotes specialty credits

June 16, 2018 in Conferences & CLE, Death Event Planning, Estate Planning - Generally, Estate Tax, Gift Tax, Guardianship, Trusts, Wills | Permalink | Comments (0)

Friday, June 15, 2018

Book on Selected Statutes on Trusts and Estates, 2018

Statute bookMark L. Ascher & Grayson M.P. McCouch recently published a a book entitled, Selected Statutes on Trusts and Estates, 2018 ed. (2018). Provided below is some information about the book:

This casebook statutory supplement meets the needs of students in basic and advanced courses on wills, trusts, decedents' estates, fiduciary administration, and future interests, providing a compendium of essential uniform act provisions and official comments. It covers a wide range of topics, including: intestacy; wills; probate administration; nonprobate transfers; disclaimers; principal and income; prudent investments; perpetuities; trusts (including trust decanting and directed trusts); powers of appointment; and powers of attorney. The previous edition has been updated to include the recently-promulgated Uniform Directed Trust Act and related conforming amendments.

June 15, 2018 in Books - For Practitioners, Estate Planning - Generally, Guardianship, Intestate Succession, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Wednesday, June 13, 2018

Texas Court Finds Evidence to Establish Lack of Capacity

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-06-13/af4abf9a-9064-40f0-b169-12e6d3edd409.pngThe Houston 14th Court of Appeals reversed the Brazoria County Court's granting of of summary judgement to the defendants in the Estate of Danford, remanding the case back to that court. The appellate court found that there was sufficient evidence for a trial after the contestants of Annie Ruth Danford's 2010 will showed that she may have lacked the testamentary capacity to execute the will.

The contestant's nephews, Ervin Hunold, Jr., Michael Hunold, Steven Hunold, and Travis Hunold opposed when the sole beneficiary and executor of the will, Robert J. Stawarczik applied to probate the will of Danford's. The Hunolds claimed lack of capacity and undue influence as Danford and Stawarczik had a fudiciary relationship because Stawarczik was also Danford's power of attorney. The court found numerous examples of the possibility that Annie Ruth may have lacked the capacity to execute the 2010 will, including:

  • Neither of the witnesses could confirm the witnesses knew she was signing a will; no one read the will aloud or otherwise indicated that everyone was there to witness a will signing
  • A person who knew the testator stated in an affidavit that she began experiencing “confusion and exhibiting extremely unusual behavior” as early as two years before she signed the will
  • The testator kept “large amounts of stray animals, over 60-70 raccoons, a peacock, cats and other stray animals” at her home.
  • The testator frequently called 911 “at all hours of the day and night, distraught and confused.”
  • The testator had allegedly denied to a witness later that she had signed a new will.

See Court Finds Evidence to Establish Lack of Capacity, Texas Probate Litigation, June 9, 2018; see also Estate of Danford, NO. 14-16-00972-CV, May 1, 2018.

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

June 13, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, New Cases, Wills | Permalink | Comments (0)

Tuesday, June 12, 2018

Thirteen Estate Planning Tips for Beneficiaries with Special Needs

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-06-12/7fe72ee7-d970-4f1c-97db-acd39740d003.pngEstate planning for individuals that have children or other types of beneficiaries with disabilities is wrought with extra layers of complexity. Those individuals are usually primary caretakers for their loved ones and worry about who will take care of them after the caretaker has passed away. Here are tips on what to do to make the caretaker's death an easier transition for the person with disabilities.

  • Draft a Letter of Intent to lay out instructions for trustees, guardians, and other's about the special needs person's likes, dislikes, habits, routines, etc.
  • Start a Special Needs Trust (SNT), or sometimes called a Supplemental Needs Trust, for the loved one's benefit during the caretaker's lifetime rather than their will.
  • Avoid court-appointed management and caretakers.
  • Consider allotting more funds for the beneficiary with the special needs to other beneficiaries that may not have the same requirements.
  • Consider life insurance to adequately fund the SNT especially if the family is newer and the beneficiary with disabilities is young.

More tips can be found in the article.

See Robert M. Freedman & Alexis R. Gruttadauria, Thirteen Estate Planning Tips for Beneficiaries with Special Needs, Wealth Management, May 9, 2018.

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

June 12, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship, Trusts | Permalink | Comments (0)

Tuesday, June 5, 2018

10 Surprising (or Surprisingly Common) Estate Planning Mistakes

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-06-05/b5b33ba1-e59f-4998-8cca-d9615e13428b.pngThere are common mistakes, then there are surprising mistakes, and then there are surprisingly common mistakes. Here is a list of 10 mistake that may seem as a surprise or may simply be a shock as they are as common as they are.

  • Not naming a contingent beneficiary on insurance policies or retirement accounts. Often a single beneficiary is not enough and not naming a secondary could cause certain accounts to transfer to your estate, leading to expensive and time consuming probate.
  • "Selling" property for $1. The IRS will consider an property sold for less than market value to be a gift, and could lead to your inheritors paying high capital gains and losing the property's "step up" value.
  • Naming specific investments in your will. This can cause a huge issue when certain investments are no longer owned and are valued at a significantly higher price. The estate may be required to repurchase the investments and leave other beneficiaries with little or no assets to inherit.
  • Not thinking through a well-intended gift. Putting certain restrictions on gifts, even with the best intentions, may not align with the beneficiary's own life choices. If a person leaves a house to a child with the instructions that to inherit the child must live in it, the child may have to choose between a well-paying job in another location and their childhood home.
  • Leaving assets directly to a minor without dealing with guardianship issues. The phrase "for the benefit" is vague when it comes to young children, and teenagers could say almost anything is for their benefit.

For more, please refer to the article.

See T. Eric Reich, 10 Surprising (or Surprisingly Common) Estate Planning Mistakes, Kiplinger, June 1, 2018.

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

June 5, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship, Humor, Trusts | Permalink | Comments (0)

Sunday, May 6, 2018

Lonely Old Chinese Man Puts Himself Up For Adoption

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-05-06/d9f00ae0-fd0a-4b32-a259-7dc7a5e9bcf3.pngHan Zicheng, an 85-year-old Chinese widower, decided in December that he did not want to spend his last days in a nursing home or die at his house alone. How to do that? By placing an ad in a flyer putting himself up for adoption. Han’s hope was that a friendly stranger or family would take him in and provide for him until he died. That never happened; instead he was taken to a nearby hospital in March by an acquaintance where he died with the friend by his side.

Traditionally, younger generations in China would take care of their elderly parents, but changing attitudes of the youth as well as the one-child-per-family rule have altered caretaker mindsets throughout the country.

See Ruth Brown, Lonely Old Man Puts Himself Up For Adoption, New York Post, May 4, 2018.

May 6, 2018 in Current Affairs, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Saturday, May 5, 2018

Family Conflict Top Estate Planning Challenge

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-05-04/067ef570-f71f-45b8-a653-5996dea62023.pngNo family is perfect, and this fact is most clear when individuals are faced with the daunting task of designating potential beneficiaries and guardians. A recent TD Wealth survey at the 52nd Annual Heckerling Institute on Estate Planning revealed that 44% of planning professionals believe that family conflict is the currently strongest threat to estate planning.

The loss of a loved one is never easy, but planning for it could make the emotional trauma more manageable. Ray Radigan, Head of Private Trust at TD Wealth, encourages clients to talk with estate planning professionals, tax advisors, and their family members as early as possible to decrease this challenge: “Losing loved ones can be difficult, and talking about what happens when a loved one is gone can be even tougher. We encourage families to start the dialogue early, and make sure they have the right people around the table from the beginning. That includes financial advisors, tax advisors, lawyers, accountants and family members.”

See David H. Lenock, Family Conflict Tops the List of Estate Planning Challenge in 2018, Wealth Management.com, March 28, 2018.

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

May 5, 2018 in Estate Planning - Generally, Generation-Skipping Transfer Tax, Guardianship, Wills | Permalink | Comments (0)

Wednesday, May 2, 2018

Never Too Late for Love

Heart-made-small-hearts-vector-32804992

Cupid's arrow can strike its mark anytime in life. But when love's intoxicating effects overcome older adults, it can occur during a time when planning involves nursing homes rather than baby bottles. There is, of course, nothing wrong with this, but estate and financial planning choices must be made at this time that may not have seemed so vital in a person’s twenties or thirties. These decisions involve long-term healthcare, planning for when one spouse is incapacitated, and altering intended beneficiaries. In addition to these concerns, the risk of divorce still exists for marriage later in life. With this risk comes the possibility of a disparity in assets between the spouses. Such imbalances demand careful preparation and knowledgeable advisors for estate planning needs.

See Bernard A. Krooks, Never Too Old for Love, Wealth Management.com, May 1, 2018.

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

May 2, 2018 in Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Saturday, February 17, 2018

Article on The Fight for Personhood, Legal Capacity, and Equal Recognition Under Law for People with Disabilities in Israel and Beyond

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-17/4a81ca95-fd30-4ca1-b4b0-5da476d5443a.pngArlene S. Kanter & Yotam Tolub recently posted an Article entitled, The Fight for Personhood, Legal Capacity, and Equal Recognition Under Law for People with Disabilities in Israel and Beyond, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article:

In 2016, Israel became one of the first countries in the world to introduce supported decision-making as an alternative to guardianship in a nationwide law. The Israeli law was enacted as an amendment to Israel’s Guardianship and Legal Capacity Law. This law provides a model to other countries that are considering abolishing or revising their guardianship laws in light of the Convention on the Rights of People with Disabilities (CRPD). The United Nations adopted the CRPD in 2006. Since then, 175 countries have ratified it, including Israel, but not the United States. Article 12 of the CRPD specifically recognizes the right to legal capacity for all people with disabilities, as well as the right to support that some people with disabilities may need in order to exercise their right to legal capacity and equal recognition under law.

The purpose of this Article is to examine the extent to which guardianship is compatible with the fundamental values of international human rights law, especially the CRPD; and if not, to consider alternatives to guardianship that comply with human rights law. Part I of this Article reviews the historical and legal background of the development of guardianship laws, including arguments against guardianship from different points of view. Part II of the Article discusses the right to equal recognition under law prior to the CRPD, followed by Part III of the Article, which discusses the background and language of Article 12 of the CRPD. Part IV of this Article discusses the Israeli Legal Capacity and Guardianship Law of 1962 and its recent amendment, which reflects the movement in Israel to include supported decision-making as an alternative to the substituted decision-making regime included in Israel’s prior guardianship law. This Part also discusses recent Israeli Supreme Court decisions, which perpetuate the unwarranted denial of legal capacity for people with disabilities despite the Court’s human rights rhetoric. Part V of the Article discusses the background, language, and purpose of Israel’s new amendment to its Legal Capacity and Guardianship Law. Although Israel is not the first country to authorize supported decision-making as a matter of law, it is one of the first countries to adopt a nationwide law that specifically includes supported decision-making as a legal alternative to guardianship. Part VI of the Article discusses developments in other countries around the world as they strive to conform their domestic guardianship laws to the CRPD. This Article concludes with recommendations for other countries that are considering enacting domestic laws that protect the right to legal personhood and legal capacity of all people with disabilities in full compliance with Article 12 of the CRPD.

February 17, 2018 in Articles, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Wednesday, February 14, 2018

Article on La Protección De La Capacidad De Los Adultos Mayores a Través De La Autonomía De La Voluntad En El Derecho Chileno Y Comparado (The Protection of Capacity Through Autonomy Judgement in Chilean and Comparative Law)

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-13/31c82dee-c904-42ba-9f77-e28caa687d88.pngYasna Otálora Espinoza recently posted an Article entitled, La Protección De La Capacidad De Los Adultos Mayores a Través De La Autonomía De La Voluntad En El Derecho Chileno Y Comparado (The Protection of Capacity Through Autonomy Judgement in Chilean and Comparative Law), Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

Spanish Abstract: El artículo tiene por objetivo resolver si en el sistema chileno una persona capaz podría designar anticipadamente, en virtud de la autonomía de la voluntad, a otra que se hará cargo del cuidado de su persona y bienes, esto es, nombrar una persona para cuando ya no esté en situación de protegerse a sí misma, de modo que su familia no sea obligada a recurrir a procedimientos judiciales de incapacitación, y, de ser posible, determinar cuál podría ser la figura jurídica idónea para que las personas puedan expresar esta voluntad.

English Abstract: The aim of the article is to resolve whether a capable person in the Chilean system could designate in advance that another person will take care of their person and property. That is to say, the possibility to appoint a person for the moment in which the person is not in a position to protect herself. Thus, the family is not forced to resort to legal incapacitation proceedings. Finally, the paper tries to determine the suitable legal form for elderly people to express this will.

 

February 14, 2018 in Articles, Estate Planning - Generally, Guardianship | Permalink | Comments (0)