Wills, Trusts & Estates Prof Blog

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

Saturday, October 3, 2015

The Risks Involved With Fill-In-The-Blank Estate Plans

EstateThere are many people that would like to try to save money on estate planning with do it yourself fill-in-the-blank forms.  Individuals thinking about this option should consider the risks involved with such an approach.  An estate plan with a Will or living trust that is poorly executed can easily fall apart and lead to a difficult situation for the loved ones that are left behind.  Putting time and effort into estate planning can help to prevent or reduce the chances of a bitter family fight later on down the road.  When setting up a plan people should think about how they want to provide for their children.  Setting up a charitable fund can be one method of keeping families together.  Clients should also base their planning around their own unique circumstances and the laws of the jurisdiction that they live in.  

See Maria C. Schmidlkofer, Fill-in-the-blank estate planning is playing with fire, Statesman Journal, October 2, 2015. 

October 3, 2015 in Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

What Happens To A Claim When A Tortfeasor Passes Away?

Funeral-trust25-crop-600x338When a tortfeasor causes an injury and then dies the plaintiff seeking a remedy might be in a difficult situation.  The Plaintiff will need to try to recover from the decedents estate when they pass away, but that is when things can get complex.  When a person dies their estate goes into the probate process where tort claims are often resolved.  Creditors often have a limited amount of time to file a claim against the estate.  It is extremely important to file a claim within the legal statute of limitations period that exists in the State where the claim is brought. If a subrogated plaintiff wants to pursue a decedents liability insurance limits they should see if their State permits them to bring an action against the estate and for summons to be brought against the insurer.  If there is no insurance or the amount is inadequate then things might get complicated.  

See Gary Wickert, I Sue Dead People: When a Tortfeasor Dies, Your Subrogation Claim Doesn't Need to Die too, Claims Journal, October 1, 2015. 

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

October 3, 2015 in Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Friday, October 2, 2015

How The Supreme Court Same-Sex Marriage Decision Will Impact Texas Couples

Same-sexThis article discusses the major impact that the Obergefell decision will have on Texas same-sex couples.  The State of Texas uses a community property system where assets accumulated during the marriage are dived evenly.  Texas also recognizes common law marriages (informal marriages).  If a couple agreed to be married, lived together as a married couple, and represented to others that they were married then the elements of a common law marriage in Texas are met.  The question many lawyers and same-sex spouses are asking is whether this common law marriage rule will apply to same-sex relationships that were formed before the Supreme Court decision.  This would have a huge impact on how the same-sex couple’s property is distributed. 

See J. Daryl Hinze, How The ‘Obergefell’ Decision Affects Texas Same-Sex Couples and Everyone Who Practices Law, Texas Lawyer, October 5, 2015.

October 2, 2015 in Current Affairs, Estate Planning - Generally, Estate Tax, Guardianship, Income Tax, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Monday, September 28, 2015

A Large Majority Of People Do Not Have An Estate Plan

Estate planningThis column discusses the alarming problem of people not having an adequate estate plan.  Only 34% of Americans actually have a valid Will.  Most people do agree that it is important to have an estate plan, but many of these people have not taken action.  One of the biggest obstacles to estate planning is a lack of information and organization.  Many people do not want to take the time to organize and search through all of their financial information.  It is extremely important for people to discuss these estate planning issues with their family members and loved ones.  Seeking out the advice and assistance of a competent estate planning attorney is also very important for any person creating a Will or an estate plan.

See The Sad State of Estate Planning: Why Only 34% Have a Will in Place, Fox Business, September 28, 2015.

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

September 28, 2015 in Current Affairs, Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Wednesday, September 23, 2015

Massachusetts Woman Charged With Attempting To Steal From Father’s Estate

GavelA woman in West Newton Massachusetts has been charged for attempting to steal from her father’s estate.  According to Westmorland County detectives Darci Randall attempted to deprive her sister of her rightful share by claiming to be her father’s sole heir.  Randall filed to become administrator of her father’s estate and wrote a $245.50 check to cover court costs that later bounced.  When office staff tried to track her down for the payments they searched an obituary and discovered the identity of Randall’s sister.  “Randall is charged with attempted theft by unlawful taking, tampering with public records, writing bad checks and false swearing.”

See Jacob Tierney, West Newton woman charged in theft of dad’s estate, Trib Live, September 21, 2015.

September 23, 2015 in Current Affairs, Estate Administration, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0)

Sunday, September 20, 2015

Article On Intestacy, Wills, And Estate Administration Case Update

WillsGerry Beyer (Professor of Law, Texas Tech University School of Law) recently published an article entitled, Intestacy, Wills, and Estate Administration Case Update, REPTL Rept. 53-4, at 7 (2015). Provided below is an excerpt from the article:

After the probate court determined that Testator had testamentary capacity, Contestants appealed. The appellate court affirmed. The court studied the evidence which included testimony of the attorney who drafted Testator’s power of attorney who declined to draft the will fearing a contest due to Testator’s celebrity status (e.g., the character of George Jefferson from All in the Family and The Jeffersons) as well as the attorney who eventually prepared the will. This attorney had no doubt that Testator had full testamentary capacity. The two witnesses and a registered nurse caring for Testator testified in a similar manner. Nonetheless, Contestants claimed that this evidence was legally insufficient.

Moral: Regardless of how competent a person is at the time of will execution, family members dissatisfied with the terms of the will are likely to contest the will, especially if the estate has substantial value.

September 20, 2015 in Articles, Intestate Succession, Wills | Permalink | Comments (0)

Tuesday, September 15, 2015

Family Business Owners Should Have Updated Estate Plans

Estate planFamily businesses are a major component of the economy and they are currently responsible for more than 70% global production.  These family run businesses represent principle creators of private wealth.  This article discusses how many of the family businesses operating in the United States do not have updated estate plans.  Not having an updated estate plan is a big mistake for anyone wishing to transfer their business to their children or loved ones.  It is extremely important to not only have an updated estate plan, but it also needs to be a quality plan put together with the assistance of a competent professional estate planner. 

See Russ Alan Prince, Most Family Business Owners Should Update Their Estate Plans, Forbes, September 15, 2015.

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

September 15, 2015 in Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Wednesday, September 9, 2015

The Dire Consequences Of Not Having An Estate Plan

Estate planDying without an estate plan can lead to a lot of problems in the probate process.  If people want to avoid having their loved ones fight with each other they should have an estate plan put in place that includes a will.  This article discusses the example of Lawrence Inlow, the former Chief Counsel of Conseco, Inc.  When Mr. Inlow passed away without having any will or estate plan his wealthy estate went into probate to be distributed via Indiana’s intestacy laws.  The wealthy decedent had children from two different marriages, and what followed was a very expensive estate battle.  Many of the problems discussed in this article could have been avoided if Mr. Inlow had simply created a will and an estate plan. 

See Bingham Greenebaum Doll LLP, The costs of failing to plan: the tragedy of Lawrence Inlow, Lexology, September 8, 2015.

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

September 9, 2015 in Current Affairs, Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

What Impact Will Inheritances Have On Retirement Savings?

ScaleThis article explores the effect that inheritance will have on people’s preparedness for retirement.  As the current population continues to age there will likely be a massive transfer of wealth within the near future.  There are many people who are likely going to receive some sort of inheritance within their lifetime.  The National Retirement Risk Index (NRRI) has put out a recent study that questioned people about how prepared they were for retirement.  The study found that the percentage of households receiving inheritances tended to rise with income.  This study found that inheritance will have a modest impact on retirement readiness depending on the individual circumstance and how people manage their money. 

See Alicia H. Munnell, Will inheritances save retirement?, Market Watch, September 9, 2015.

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

September 9, 2015 in Current Affairs, Elder Law, Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Saturday, September 5, 2015

Article On Contractual Indescendibility

Article PictureDavid Horton (Professor of Law, University of California, Davis - School of Law) recently published an article entitled, Contractual Indescendibility66 Hastings L.J. 1047-1081 (2015). Provided below is an abstract of the article:

Testation is supposed to be comprehensive: when we die, we pass everything we own to our friends and family. However, a growing number of valuable things defy this principle. From frequent flyer miles to virtual property to email and social media accounts, some assets expressly state that they cannot be transmitted by will, trust, or intestacy. This invited contribution to the Hastings Law Journal Symposium in honor of Charles L. Knapp analyzes this trend, which I call “contractual indescendibility.” It shows that consumers who challenge non-inheritability provisions face three obstacles. First, they have to prove an ownership interest in the item. Second, they need to invalidate the indescendibility clause under contract law. And third, they must navigate the gauntlet of federal legislation that governs this area. Despite these hurdles, I conclude that companies should not have carte blanche to delete this cherished stick from the bundle of rights.

September 5, 2015 in Articles, Intestate Succession, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)