Wills, Trusts & Estates Prof Blog

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

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Thursday, July 2, 2015

CLE On Planning for the Probate Contest

CLEThe American Bar Association is presenting a paralegal CLE entitled, Live From Skill Training: Planning for the Probate Contest, Wendesday, July 15, 2015, 5:00-6:30pm Eastern, online.  Here is why you should attend:

Although many estate planning arrangements are implemented without controversy, given family dynamics involved in such planning, drafting attorneys should be mindful of the possibility that family members will disagree.   Those who are dissatisfied with an estate plan may resort to court proceedings.   This segment of the STEP program will introduce attendees to the essential concepts of probate litigation, including will and trust disputes, contests, and fiduciary litigation.   Those engaged in the estate planning process should be aware of the manner in which probate litigation arises so that they can plan to avoid such disputes (as much as possible).   After reviewing those concepts, this segment will explore some of the planning approaches that can be pursued to avoid probate litigation.

July 2, 2015 in Conferences & CLE, Intestate Succession, Wills | Permalink | Comments (0)

Monday, June 29, 2015

Article On Probate In Alameda County, California

Article PictureDavid Horton (Professor, University of California, Davis - School of Law), recently published an article entitled, In Partial Defense of Probate: Evidence from Alameda County, California, 103 Georgetown Law Journal 605 (2015). Provided below is an abstract of the article:

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.

June 29, 2015 in Articles, Intestate Succession, Wills | Permalink | Comments (0)

Thursday, June 25, 2015

North African Tribe Uses Mother's Bloodline To Dictate Inheritance

TuaregThe Tuareg people of North Africa have evolved unique customs when it comes to women's rights, among them being an emphasis on the female bloodline for inheritance. Any children from a marriage are considered to be of the mother's line and will have inheritance privileges based on that connection. The female line is favored due to the belief that a child's paternity is without doubt when it comes to a mother and is a more reliable method to track bloodlines than through the father. This is in stark contrast to the use of male preference inheritance rights that dominates the surrounding regions and truly sets the Tuareg apart in a unique way.

See Flora Drury, Sex and the Sahara: Striking photographs of the mysterious Islamic tribe..., Daily Mail, June 24, 2015.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

 

June 25, 2015 in Intestate Succession, Wills | Permalink | Comments (0)

Wednesday, June 24, 2015

Zimbabwean High Court Grants Inheritance Rights To Out Of Wedlock Children

ZimbabweThe High Court of Zimbabwe has ruled that children born out of wedlock have equal inheritance rights as children born in a marriage. Citing the country's 1979 constitution, the court held that all children have the right to inherit from a parent equally. The case was brought by a widow who wished to exclude her deceased husband's children from his estate. Traditionally, children born outside of marriage were stigmatized and denied a number of rights besides inheritance however, in recent years, the prejudice has declined as the children become better accepted in society. I applaud the High Court for its decision to expand inheritance rights to a group that was once totally denied the rights of a surviving child.

See Daniel Nemukuyu, Landmark Ruling On Inheritance, Nehanda Radio, June 24, 2015.

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

June 24, 2015 in Current Affairs, Current Events, Intestate Succession, New Cases | Permalink | Comments (0)

Friday, June 19, 2015

Tennessee Court Holds That Will Witnesses Must Sign Actual Document

WillThe State of Tennessee strictly construes the formalities involving the execution of a valid will.  The Court of Appeals of Tennessee has recently held in In re Estate of Bill Morris, that a will is not valid if it is not actually signed by the witness.  In this case the two witnesses signed what amounted to a self-proving affidavit and did not actually sign the will itself.  The text of the Court of Appeals decision can be read here.

See Luke Lantta, Tennessee Will Witnesses Must Sign Will Itself, Bryan Cave LLP, June 10, 2015.

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

June 19, 2015 in Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

How Estate Planning Affects Single People

Single personSingle people and couples face different issues when estate planning.  If a single person dies intestate then their property will be distributed in accordance to the laws of that person’s state.  It is just as important for a single person to have a will as it is for a married couple.  A person making a will should put some thought into who will inherit their personal property.  It is a good idea to designate who will have power of attorney to make medical and financial decisions in the event the single person loses capacity.  Planning ahead for possible state and federal estate taxes is also a wise strategy.  Any single person who wants to make an estate plan should speak with an Estate Attorney and Financial Planner to get professional advice. 

See Douglas Rothermich, Estate Planning For Single People, Forbes, June 18, 2015.

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

June 19, 2015 in Current Affairs, Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Thursday, June 18, 2015

“Openly Held Out” Means To Acknowledge Publically A Child

Gavel 2The biological father of child died intestate and the mother of the child petitioned to administer the estate and for a declaration that the child was the father’s heir. Genetic testing resulted in finding a 99.9996 probability that the decedent was the father of the child but the trial court denied both petitions.

In Estate of Britel, the intermediate California appellate court affirmed holding that proof of paternity by clear and convincing evidence that the father “has openly held out the child as his own” requires “an unconcealed affirmative representation of paternity in open view,” a requirement unmet in this case where the father’s only statements were made privately to a friend, and that the statutory test does not violate the equal protection rights of children who can prove paternity through genetic testing.

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

June 18, 2015 in Intestate Succession, New Cases | Permalink | Comments (0)

Sunday, June 14, 2015

Woman Digs Up Deceased Father To Get DNA Test

NinaA Woman living in upstate New York named Nina Sebastiana Viola Montepagani has dug up her father’s remains to get a DNA test proving that he was not her real father.  Nina’s goal is to prove that she is actually the daughter of a wealthy Italian physician that she is certain had an affair with her mother.  If Nina can prove that Dr. Sebastiano Raeli was her real biological father she could be the heir to a $50 million inheritance.  She would be physicians only child if she is able to amend her birth certificate.  It is not yet clear if Nina will also need to dig up Raeli’s grave in Rome for a DNA test proving paternity.

See Julia Marsh, Priscilla DeGregory, and Laura Italiano, Woman dig’s up dead dad to get ‘real’ father’s $50M, The New York Post, June 13, 2015.

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

June 14, 2015 in Current Affairs, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0)

Wednesday, June 10, 2015

Overseas Inheritance Law Creates Potential Peril For Estate Planners

EarthWhen a person owns real estate overseas, the property will be subject to the inheritance laws of the country in which it is located. These laws may vary widely with many European and South American countries heavily favoring children over spouses even when a will expresses otherwise. However, there are several planning routes to take with this type of property including doing nothing if the owner is happy with the inheritance laws or plans to sell the property before death or crafting a will that complies with local customs. In any case, it's always a good idea to keep an eye on the laws that govern the situs real property, be it a foreign or domestic, as they may dramatically alter an estate's distribution. 

See Kathleen Peddicord, Understanding Inheritance Laws When Owning Property Overseas, US News & World Report, June 9, 2015.

June 10, 2015 in Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Original Documents Are Always Worth Protecting

WillsOriginal documents are always hard to keep track of, particularly for younger generations that are used to having most documents being purely digital. However, failure to keep track of original documents can have a negative effect on estate plans when it comes to a will. In a New Hampshire case, the original will was lost and the court imposed a presumption of revocation even though there was a valid codicil with a copy of the original. As a result, the assets passed intestate which was potentially out of line with the would be testators preferred distribution. Keep this in mind and always make sure a client knows the importance of original documents so they take proper care to protect them.

See Larry Deason, Estate Planning: Safeguarding original copies is critical, Yuma Sun, June 8, 2015.

 

June 10, 2015 in Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)