Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Sunday, March 1, 2015

Till Death Do You Part

Signing

After a three-year marriage and less than amicable break-up, a young couple finally moved on with their separate lives.  Now, a missing signature unites them in death. 

A 31-year-old man who died intestate left his entire estate to his estranged wife, even though the couple already split their assets.  The man’s grieving family has no rights to the assets.  At the heart of the legal battle is a missing signature.  The man’s estranged wife had served signed divorce papers on him months before his death but had not signed them.  Thus, upon the man’s death he was still legally married, and the remainder of his estate went to his estranged wife. 

The man’s new partner said his father was left “heartbroken” over the dispute.  She will ask the court to grant an order giving her a share of the estate.  “I’m not by any means money-driven but I think that [her late partner] would want what’s right to take place.”

See Michaela Whitbourn, Family Battle of Wills Over Missing Signature Exposes the Limitations of Estate Law, The Sydney Morning Herald, Feb. 28, 2015.

March 1, 2015 in Estate Administration, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Thursday, February 26, 2015

Fitness Star Greg Plitt Dies Intestate

Greg plitt

When Bravo T.V. fitness star Gregg Plitt was tragically hit and killed by a commuter train while shooting a sports drink commercial last month, he did not have a will.  Now, Plitt’s family is trying to ensure his $800,000 estate ends up in the right hands. 

The 37-year-old did not have a spouse or child when he died, and according to court documents, his father filed a petition to control his son’s estate. Regardless as to whether a petition is filed, the California intestacy statute requires that his parents will share his estate.

See Bravo’s Greg Plitt Had $800K in the Bank…But No Will, TMZ, Feb. 24, 2015.

See also Jay Brinker, Greg Plitt’s Final Run, Jay Brinker, Attorney, Feb. 24, 2015.

Special thanks to Jay Brinker (an Ohio attorney) for bringing this article to my attention.

February 26, 2015 in Estate Administration, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Monday, February 23, 2015

Bobbi Kristina's Life Support Battle Continues

Bobbi Kristina

Bobbi Kristina was found lifeless in the bathtub only a few months ago, and now her father Bobby Brown must decide when to terminate life support. 

On of the problems this situation presents is that Bobbi Kristina was already far removed from her family when she was found.  The absence of any kind of medical directive makes Brown the de facto next of kin when it comes to determining how long the doctors should keep her alive. 

Although Nick Gordon was Bobbi Kristina’s longtime boyfriend, fathers outrank boyfriends or even fiancés.  If Bobbi Kristina and Nick ever got married, he would have had the spousal right to make medical decisions on her behalf.  Instead, like many couples living together without a marriage license, their opinions can be overruled at any time once hospital administrators get in touch with the parents or other blood relatives.  Furthermore, a husband would have inherited the $20 million Bobbi Kristina’s mother left her; now Bobby Brown may end up with Whitney’s money after all. 

See Scott Martin, Would Whitney Have Let Bobbi Die? Life Support Fight Highlights Need for Multiple Levels of Advance Directive, Trust Advisor, Feb. 16, 2015.

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

February 23, 2015 in Current Affairs, Estate Planning - Generally, Intestate Succession, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Sunday, February 22, 2015

Attempt to Avoid Estate Tax Blocked By Judge

Gavel2

A Brooklyn Surrogate judge rejected the petition of an heir who sought to disclaim her infant’s interest in a deceased grandparent’s estate in order to avoid a large estate tax liability. 

When Sharon Lindsay died intestate, her property went to her husband, son and daughter, Kimberly Friedman.  Lindsay left approximately $6.25 million to be shared among her immediate family members, but due to New York estate tax law, Friedman’s and her brother’s share would be subject to a $200,000 tax liability.  The share allotted to Lindsay’s husband would not be taxed because of the marital exception.

Friedman and her brother decided to allow their father inherit the entire $6 million estate tax free by renouncing their share of the estate.  Yet, the legal glitch in their tax avoidance plan was Friedman’s infant daughter, who would inherit Friedman’s share if Friedman disclaimed her own interest.  Thus, Friedman would have to renounce her share of the estate as well as her daughter’s interest to have the desired tax effect.

Although New York courts have granted the renunciation of an infant’s right to an inheritance, the court in Brooklyn held that the best interest of the child must be a determining factor.  Since it was unclear from the court record whether Friedman and her brother had an agreement with their father to share in the $6 million after all parties renounced their share, the judge was unwilling to take chances with the child’s future inheritance.  The possibilities of Friedman’s daughter obtaining no inheritance on account of her mother’s renunciation could not be ignored in order to receive a tax benefit. 

See Charisma L. Troiano, Brooklyn Judge Blocks Heir’s Attempt to Avoid N.Y. Tax on $6M Estate, Brooklyn Daily Eagle, Feb. 21, 2015.

February 22, 2015 in Estate Administration, Estate Planning - Generally, Estate Tax, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2015

Travis County Probate Judge Holds Gay Marriage Ban Unconstitutional

Gay marriage

Travis County Probate Judge Guy Herman ruled yesterday that the Texas ban on same-sex marriage was unconstitutional; however, the county will not yet issue marriage licenses to gay couples. 

Herman made the ruling as part of an estate fight where Austin resident Sonemaly Phrasavath sought to have her eight-year relationship to Stella Powell deemed as a common law marriage.  When Powell died intestate last summer, Travis County courts became involved in the battle over Powell’s estate between Phrasavath and two of Powell’s siblings.

Last year, a federal judge declared Texas’ same-sex marriage ban unconstitutional but stayed his own ruling.  The case is now being considered by the U.S. 5th Circuit Court of Appeals.

 See Wire Reports, Travis County Won’t Issue Same-Sex Marriage Licenses After Austin Judge Rules Texas’ Ban Unconstitutional, The Dallas Morning News, Feb. 17, 2015.

February 18, 2015 in Current Affairs, Estate Planning - Generally, Intestate Succession, New Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

Give More Than Chocolates This Valentine's Day

ChocolatesValentine’s Day is right around the corner, and while you might want to show your affection with a box of chocolates or greeting card, the best way to take care of those you love is to review your estate plans. 

If you do not have a will, brush up on your state’s intestate succession statutes.  If you do have a will, review and update it this month.  In either case, one of the truly important aspects to understand is that contractual arrangements take priority over wills. 

Contractual arrangements that you may want to review this month include life insurance and annuity policies; retirement accounts; employee benefit plans; revocable and irrevocable trusts; payable on death accounts, certificates of deposit, savings bonds; and transfer on death designations for stocks, bonds and mutual fund accounts.  Make sure that your intentions for how, and to whom, you want to leave money and property are in accordance with how you have your accounts and property titled.  How your will is written will be secondary to these contractual arrangements. 

Since it is also Valentine’s Day, think about writing a love letter to accompany your will, funeral file or estate plans.  Not only is it nice for beneficiaries to have your assets, but also a reminder of your affection for them. 

See Jane Wolery, A Box of Chocolates and a Will: Valentine’s Is a Great Time To Review Estate Planning, Fairfield Sun Times, Feb. 9, 2015.   

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

February 11, 2015 in Estate Administration, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, February 8, 2015

Article on Joseph S. Jenkins' Inheritance Law

Matthew Nicholson

Matthew Nicholson (Southampton Law School) recently published an article entitled, Fragmented Method: Walter Benjamin, Law, and Representation in Joseph S. Jenkins’ Inheritance Law and Political Theology in Shakespeare and Milton, 26 Law & Lit. 389-398 (2014).  Provided below is a portion of the article’s introduction:

Scholarship on Walter Benjamin and law—on the significance of Benjamin’s thinking for the ontology of law, legal method, and the nature of legal scholarship—is a growth industry, a crowded marketplace.  The challenge for this industry is to create a “dialectical image,” a “flash” of light, capable of transforming legal thought, breaking the link between law, inequality, and injustice by moving law into a closer relationship with their dialectical opposites.  Whatever the debates about the phases in Benjamin’s thought—the “early,” the “late,” the Marxist, the religious—any attempt to constellate the fragments of Benjamin’s though to say something about law as an intellectual field must be judged by its compatibility with his pursuit of radical transformation in the structure and method of thought and practice itself. 

 

February 8, 2015 in Articles, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Thursday, January 29, 2015

Lesson For Young Adults From Cory Monteith

Cory MonteithThe sudden and unexpected death of Glee star Cory Monteith provides an example of the importance of young adults not putting off estate planning, especially having a will. Resolution of Monteith's estate was delayed for a year-and-a-half due to complications over whether an exception was warranted to the general intestate rule that his parents would inherit from his $810,000 estate equally. The issue is seemingly resolved by his father stating that he does not wish to inherit anything from his son's estate, but not before he signed a document that stated he did not have communication with his son for many years and did not pay child support. Monteith's father later claimed that he did not know what the document said and that it was untrue. If Monteith had a will, the public blame game and finger pointing by his parents, who each accused each other for his father's absence in his life and argued over whether that attributed to the young star's death, may have been avoided.

See Danielle Mayoras & Andy Mayoras, Cory Monteith Shows How Even Young Adults Need Wills, Forbes, Jan. 28, 2015.

January 29, 2015 in Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, January 11, 2015

Article on Posthumously Conceived Children and Social Security Benefits

Social security 1

Catherine Kim (J.D. 2014, Loyola Law School, Los Angeles) recently published an article entitled, Posthumously Conceived Children and Their Social Security Benefits Based on State Intestacy Law: How Astrue v. Capato Changes Future Social Security Benefits As Technology Advances, 46 Loy. L.A. L. Rev. 1141-1158 (2013).  Provided below is a portion of the article’s introduction.

A widowed spouse may have a variety of reasons why she wants to conceive after her spouse’s death. A widow can turn to in vitro fertilization to make “a tribute to one’s deceased partner . . . [, to follow] religious reasons . . . [,] to know the genetic origin of one’s child . . . [, to] produce a full sibling rather than a half sibling . . . [, or] to create a grandchild.” However, a recent U.S. Supreme Court case may impact their decision to do so. Before Astrue v. Capato, courts inconsistently addressed the issue of Social Security benefits for posthumously conceived children under the United States Social Security Act (the “Act”). The Act states that families of deceased workers are entitled to Social Security benefits. Some courts ruled in favor of allowing benefits for posthumously conceived children, while others denied such benefits. In addition, the emergence and increasing use of in vitro fertilization and other assisted reproduction methods have exacerbated the problem of determining a child’s legal parentage, especially when wills omit posthumously conceived children. Courts have, at times, struggled with deciding whether these children qualified under their deceased parent’s benefits when there was no consent to or mentioning of posthumously conceived children under the decedent’s written will or addendum.

January 11, 2015 in Articles, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Technology | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

Article on Federal Visions of Private Family Support

Laura RosenburyLaura Rosenbury (Washington University in Saint Louis - School of Law) recently published an article entitled, Federal Visions of Private Family Support, Vanderbilt Law Review, Vol. 67, No. 6, 2014. Provided below is the abstract from SSRN:

This Article offers a new perspective on the relationship between family and federalism by analyzing why the government — whether state or federal — recognizes family at all. The Article examines the current balance between state and federal authority over family by reviewing the Supreme Court’s recent decisions in Astrue v. Capato, upholding the Social Security Administration’s deference to states’ intestacy laws when distributing benefits to posthumously conceived children, and United States v. Windsor, in which the Court struck down a provision of the federal Defense of Marriage Act. Although each decision affirmed the states’ primary role in defining family status, developments before and after Capato and Windsor reveal that federal agencies and courts are increasingly promulgating federal definitions of family. In particular, federal courts have rejected many states’ definitions of marriage post-Windsor. This Article argues that these developments are not motivated by a rejection of federalism or the diversity and pluralism that is thought to flow therefrom. Instead, federalism remains an important value so long as it does not displace the underlying reason for legal recognition of family: the encouragement of private family support.

January 6, 2015 in Articles, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0) | TrackBack (0)