Wills, Trusts & Estates Prof Blog

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

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Monday, March 30, 2015

Planning Ahead for Special Needs

Special needs 2

Planning for family members with special needs can be overwhelming, especially when so many decisions may have lifelong consequences.  Not only must parents untangle the intricacies associated with government programs, but they must also understand guardianships, legal documents and the like.  Below are some tips for families beginning to plan for individuals with special needs:

  • Getting Started.  When you need to budget for another person, saving for retirement becomes even more difficult.  You may need to take precautions that money set aside for your child will not be consumed by long-term care expenses for you or a spouse.  Many families supplement what Medicaid provides by putting money into a special needs trust, and those funds can be used to help pay for the individual’s expenses without jeopardizing government benefits. 
  • Utilize New Tools.  The ABLE or 529A account, is a tax-advantaged savings vehicle that make it much less costly to create a special needs trust.  These accounts are likely to be attractive for disabled people who work and want to save more than $2,000, or for families who need a place to deposit gifts or inheritances from family members.  Once the account exceeds $100,000, the individual’s benefits will be cut off, although Medicaid is not affected. 
  • Trusts.  While there are several types of special-needs trusts, “third party” trusts are frequently used by families who want to supplement what the disabled person receives through government-run programs.  The trusts can sit for years, families can add money over time, or they can fund them with life insurance and estate proceeds.  Pooled trusts are also an option for families with less money or little family to help oversee the process.
  • Guardians.  Families struggle when it comes to considering whom to appoint as a guardian to look after their child, as well as who will serve as a trustee to oversee any trust accounts.  Some experts suggest splitting roles to build in a system of checks and balances: Have a guardian who will advocate for the individual, and a separate trustee to handle the money.

See Tara Siegel Bernard, Tips for the Future Care of Disabled Family Members, The New York Times, March 27, 2015.

Special thanks to Matthew Bogin (Bogin Law) for bringing this article to my attention.

March 30, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, Non-Probate Assets, Trusts | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 25, 2015

Latest Battle in Ernie Banks' Estate

Ernie BanksThe caregiver in charge of Ernie Banks’ estate wants the late Chicago Cubs player’s estranged wife to turn over records of any assets he left behind in the couple’s California home when they separated.  In a court filing, Regina Rice said Banks had “attempted to retrieve” assets from the home after he moved out in 2012 but that he was unable to get them back from his wife.  Rice has asked Cook County Probate Judge James Riley to order Banks’ wife to turn over records of any assets in her control so Rice can complete a full accounting of the estate.  A hearing on the case is scheduled for Thursday. 

See Jason Meisner, Ernie Banks’ Caretaker Wants List of Assets from Ex-Cub’s Estranged Wife, Chicago Tribune, March 24, 2015.

March 25, 2015 in Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Friday, March 20, 2015

Tips for Professional Guardians

HandGuardianship is trending toward professional guardianship assignment rather than those with a personal connection to person. Professional guardians bring experience, but can also get overloaded with responsibilities. Here are some tips for professional guardians:

  • Keep an individualized case-by-case approach with each ward.
  • Have an understanding of the ward's situations and the unique responsibilities that will come with accepting the guardianship.
  • Do not take on too many cases.
  • Create a plan for who will be the next guardian if sudden and unexpected circumstances arise that make the current guardian unavailable.

See Patricia Maisano, Watching Out For Our Wards, Wealth Management, March 17, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

March 20, 2015 in Guardianship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2015

Estate Planning for Internationally Minded Families

GlobeThe current climate of large international businesses results in estate planners having clients that are from one country, living currently is the U.S., and facing the possibility of moving again at an indeterminate time. This creates unique challenges for the estate planner. It is important for the planner to help with planning in the current state of residence, such as setting up a living trust and naming a guardian for any children. Many globe-trotting families will also have property and assets in the country they moved from, which makes it important for a U.S. estate planner to coordinate with an attorney in that other country that is planning for those assets as well.

See Ian Holzhauer, International Estate Plans, Tailored Estate Planning, March 17, 2015.

March 19, 2015 in Estate Planning - Generally, Guardianship, Trusts | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2015

Florida's Guardianship System Could Get a Makeover


Last year, an investigation detailing the abuse regarding Florida’s guardianship system showcased that in cases across the state, court-appointed guardians were taking advantage of the elderly and incapacitated people they were supposed to protect. 

Now, Florida’s much-maligned system may finally get the overhaul it so desperately needs.  Half a dozen bills have been filed and several of them are likely to pass.  “No longer can anyone claim that we are making this up and it’s not a statewide chronic problem,” says Dr. Sam Sugar of the group Americans Against Abusive Probate Guardianship. 

One of the most important bills, Senate Bill 1226, could make the most sweeping changes by creating a wholly new agency to supervise guardians.  Currently, there is almost no remedy for family members to complain that a guardian is physically or financially abusing a ward.  The only recourse is to complain to a probate judge.  The new law, if passed, would be “absolutely revolutionary for this state.”

See Michael E. Miller, Florida’s Broken Guardianship System Could Finally Get Overhauled This Year, Miami New Times, March 4, 2015.

March 17, 2015 in Estate Planning - Generally, Guardianship, New Legislation | Permalink | Comments (0) | TrackBack (0)

Friday, March 13, 2015

Court Blocks Conservator's Attempt to Create SNT


A California appeals court recently upheld a trial court’s denial of a conservator’s petition to establish a first-party special needs trust for a 66-year-old woman, because, under federal law trusts cannot be created for the benefit of people of individuals who are ages 65 and older. 

Elaine Abbott is a professional conservator who was in charge of managing Carla Horton’s estate.  When Ms. Horton was 66, Ms. Abbott petitioned the probate court to create a trust for Ms. Horton’s benefit.  When the probate court denied the request for the aforementioned reason, Ms. Abbott appealed.  When the appeals court asked Ms. Abbott why her appeal was not moot due to Ms. Horton’s age, Ms. Abbott submitted a brief proposing that the court create a pooled trust, because pooled trusts can be funded by beneficiaries of any age.  The court denied the appeal and required her to pay all costs and legal fees since the appeal did not benefit Ms. Horton.  Estate of Horton, Cal. Ct. App., No. B253487, Jan. 15, 2015.

See Conservator Fails in Attempt to Establish SNT for 66-Year-Old, Resourceful Law, 2015.

March 13, 2015 in Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Guardianship, Trusts | Permalink | Comments (0) | TrackBack (0)

Article on Extraordinary Remedies in Guardianships

Catherine GoodmanCatherine H. Goodman (Partner, Shannon, Gracey, Ratliff & Miller, LLP) and R. Dyann McCully (Shareholder, Bakutis, McCully & Sawyer) recently published an article entitled, Extraordinary Remedies in Guardianships, 7 Est. Plan. & Community Prop. L.J. 159 (2014). Provided below is the introduction to the article: 

Guardianship issues can be difficult in the simplest cases. In some instances, extenuating circumstances call for extraordinary remedies. This paper offers step-by-step guidance and forms to assist the guardianship practitioner in obtaining the best results.

March 13, 2015 in Articles, Guardianship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 25, 2015

Ernie Banks Estate Worth $16,000

Ernie BanksWhen Chicago Cubs legend Ernie Banks passed away, he had assets worth $16,000.  Cook County Probate Judge James Riley gave his caregiver, Regina Rice, thirty days to provide a full accounting of Banks’ estate at the time of his death last month. 

I have previously discussed the battle between Rice and Banks’ estranged wife, Elizabeth Banks, over what should be done with Ernie Banks’ remains and who should inherit his estate.  Elizabeth Banks prevailed with the remains, having them buried at a cemetery a few blocks from Wrigley Field.

Banks is now contesting a will that her husband signed in October, without her knowledge, that specifies all his assets should go to Rice.  Ernie Banks’ two sons will also contest the will.

At a short hearing yesterday, Elizabeth Banks’ attorneys were surprised that Rice’s attorney’s estimate of Ernie Banks’ estate was worth only $16,000.  This prompted Judge Riley to order Rice to provide documentation about the assets.  Moreover, Rice must seek the judge’s permission before selling any of the estate’s assets.

See Lawyer Says Ernie Banks Assets Worth $16,000, Associated Press, Feb. 24, 2015.

February 25, 2015 in Estate Administration, Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, February 23, 2015

Tom Benson: Treated Unfairly?

Tom Benson Family

On February 9, Bear County Probate Judge Tom Rickoff ordered that two receivers take control of Tom Benson’s Texas-based fortune—a move that has not occurred more than a dozen or so times in the past thirty years. 

This order sparked concern because it was based upon only a slight finding that Tom Benson is “stressed” by the pressures of sports fans and media scrutiny attendant to the probate proceedings, rather than probable cause or credible evidence of actual incompetence.  Neither the United States Constitution, nor the Texas Estates Code allow this kind of overreaching by the courts, which deprives citizens of liberty or property without due process of law.  Yet, Judge Rickoff cites a two-day hearing to justify the extraordinarily rare act of ordering a receivership over the 87-year-old’s fortune. 

The receivers confirm the premature nature of Judge Rickoff’s unprecedented decision, stating that their immediate plans include “deciding whether the assets are in any danger.”  Not only could this suggest that receivership was an abuse of discretion, but Benson’s attorneys characterize this move as a “fishing expedition.”

See Candice Schwager, Judge Rickoff’s Unprecedented Receivership Over 87-Year Old Tom Benson’s Fortune, Examiner, Feb. 22, 2015.

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

February 23, 2015 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Guardianship, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2015

Article on Public Guardianship for Elders

GuardianshipEleanor B. Cashmore (Boston College Law School) recently published an article entitled, Guarding the Golden Years: How Public Guardianship for Elders Can Help States Meet the Mandates of Olmstead, 55 B.C. L. Rev. 1217-1251 (2014).  Provided below is the article’s abstract:

The aging American population will quickly lead to a greater demand for long-term care and services for people who are unable to care for themselves. Some older adults may require other individuals to make informed decisions on their behalf. State guardianship programs must confront the tension of providing protections for people who are incapacitated while respecting their autonomy, particularly when making decisions involving a person’s residence. When elderly adults wish to stay in their communities and are capable of doing so, a lack of proper support may be a violation of the Americans with Disabilities Act of 1990 (“ADA”), as interpreted by the U.S. Supreme Court in 1999 in Olmstead v. L.C. ex rel. Zimring. One solution may be found in effective public guardianship programs. This Note explores the effect of Olmstead on state funding for long-term care, the implications of the Olmstead decision for guardianship, and common models of public guardianship. This Note then argues that existing public guardianship programs, if appropriately funded and held to proper standards, can help states meet the mandates of the ADA and Olmstead.

February 19, 2015 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)