Wills, Trusts & Estates Prof Blog

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

Thursday, February 11, 2016

Some Of The Issues With Payable-On-Death (POD) Agreements

Charitable trustThis column discusses some of the problems that can come up with payable-on-death (POD) agreements that are being increasingly used by brokerage firms and banks. “These agreements are a form of beneficiary designation that transfers the account directly to your chosen beneficiary avoiding probate and bypassing your will.” These agreements can be good in the right circumstances, but there are risks if they are not carefully thought out. This column provides a real life example of a nephew using a POD in a way that was contrary to the way his aunt intended. Wills and estates are much more complex than they seem on the surface, and it is extremely important for people to be cautious about how they use POD agreements. “The best uses are where the case facts are simple such as you know you want a certain account to go to a certain person.”

See Stewart Welch, The downside of P.O.D.’s, Alabama Media Group, February 11, 2016.

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

February 11, 2016 in Estate Planning - Generally, Income Tax, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Tuesday, February 9, 2016

Why Keeping Beneficiary Designations Updated Is Important

Beneficiary designationThis article discusses the importance of updating all beneficiary designations in an estate plan. In 2001 the Supreme Court held in Egelhoff v. Egelhoff that the federal law governing ERISA preempted any contradictory state laws that disinherited ex-spouses. This case involved a divorced father who forgot to update the beneficiary designations on his retirement accounts. The stepmother ended up winning because she was still listed as the beneficiary of the retirement account after the divorce. This is a very common problem that people need to be careful to plan ahead for. This article provides a list of the type of common events that will trigger the need to update beneficiary designations in an estate plan. There is also a list of the type of assets through which a person may designate beneficiaries.

See Kyle E. Krull, What is the Big Deal about Beneficiary Designations?, Wealth Management, February 8, 2016.

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

February 9, 2016 in Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

How Remarriage Impacts Estate Planning

MarriageThere are many people getting remarried who are not aware of how their new marriage will impact their estate planning situation. As a consequence there are far too many people who do not do enough to plan ahead. This article goes into some detail describing how remarriage can effect just about every aspect of estate planning. People that are entering into another marriage need to be aware about things like the spousal elective share, community and personal property rights, homestead rights, and spousal support requirements. This article also goes into the implications that ERISA has on marriage. It is also extremely important to make sure all the beneficiary designations as well as the will is up-to-date to avoid all the probate issues that will come about from a person dying intestate. Because the laws vary from state to state estate planners will often encounter very complicated issues.  

See John J. Scroggin, Estate Planning Implications of Remarriage, Journal of Financial Planning, February 9, 2016.

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

February 9, 2016 in Estate Planning - Generally, Estate Tax, Guardianship, Income Tax, Intestate Succession, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Thursday, February 4, 2016

What Happens If A Will Is Lost?

Last willIt can be a difficult situation if a person is not able to find the original or copies of a loved ones will. This column discusses the steps that a person should take when they lose a will to track it down. They should first check to see if the will was admitted into probate or find out of their loved one owned a safety deposit box where they might have stored the document. It is also a good idea to review the checkbook or bank statements of a deceased loved one to see if they ever paid an estate planning attorney. Reaching out to the loved one’s relatives and financial adviser is also a very good idea for a person needing to track down a missing will. If the will is not found then there is a chance that the estate may be distributed in accordance with the intestacy laws of that locality.

See Kyle E. Krull, What If My Client Can’t Find A Loved Ones Will?, Wealth Management, February 2, 2016.

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

February 4, 2016 in Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Tuesday, January 26, 2016

The Work That Goes Into Finding The Heirs Of An Estate

Last willThe duty of an executor to locate all heirs who are entitled to a share in the assets of an estate is something that is recognized in many jurisdictions. The difficulty involved with the process of locating heirs will often depend on the Will and the circumstances surrounding the specific situation. This article discusses some of the self-help remedies that executors can use to locate heirs. The executor might also want to consider hiring a professional researcher if the task of locating heirs becomes too difficult or complex. It is important for the executor to make a “reasonable effort” to find the heirs in order to fulfill the required standard that this column discusses.

See Suzana Popovic-Montag and Ian M. Hull, The Process of Locating The Heirs of an Estate, The Huffington Post, January 25, 2016.

January 26, 2016 in Estate Administration, Estate Planning - Generally, Intestate Succession, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Wednesday, December 23, 2015

New Virgin Islands Law Will Allow Non-Marital Children To Inherit After DNA Test

WillsA Senator in the US Virgin Islands legislature has introduced a bill that will allow DNA testing to be used to prove the paternity of a child for inheritance purposes. Currently, the laws in the island chain only allow children to inherit if the child was acknowledged by the father before his death or a court rules otherwise and only then for intestacy. Now a child, once proved by DNA testing, may be able to inherit even through through a class gift in a will or intestacy which represents the first change to island's inheritance laws in over 50 years. Currently, the bill is awaiting the governor's signature to be passed into law.

See Ernice Gilbert, Bill Giving Inheritance Rights Through DNA To Children Who Fathers Neglect Heads To MAPP, The Virgin Islands Consortium, December 18, 2015.

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

 

December 23, 2015 in Current Affairs, Intestate Succession, Wills | Permalink | Comments (0)

Monday, December 14, 2015

Estate Planning Advice That Clients Should Think About

Business_expenseThis column provides some important basic pointers that clients should ponder when estate planning. There is a disturbing AARP survey that has been released recently that reveals 40% of Baby Boomers do not have a Will. Far too many people make the mistake of procrastinating for many different reasons. Discussing death and estate planning matters might be a difficult and uncomfortable subject that many people like to put off dealing with. If a person dies without a Will their assets will go into the probate process and be distributed according to the intestacy laws of the deceased person's state. If a person wants to have more control over how their property is distributed when they pass away then they need to have a well thought out estate plan put in place.

See Kyle E. Krull, What Estate Planning Pointers Should My Clients Ponder?, Wealth Management, December 14, 2015.

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

 

December 14, 2015 in Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (1)

Friday, December 11, 2015

An Increasing Number Of Americans Are Dying In Debt

National debtThere are a growing number of Americans that do not feel like they will be able to pay off their debts before they die. When a person dies with debt their family members will typically not have to pay off the debt from their own money. Creditors will usually take the debt from the deceased persons estate (if there is anything left in it). There are many exceptions to this policy that can include a person who co-signed a loan or a deceased person living in a community property state. People should be informed about the laws of the state that they live in. It is a good idea to speak with an experienced estate planning professional about the impact that an individuals debts will have on their designated beneficiaries.

See Catey Hill, 1 in 5 Americans will die in debt, Market Watch, December 9, 2015.

December 11, 2015 in Current Affairs, Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Monday, December 7, 2015

Important Steps To Follow When Selling A Business

Next actThis article discusses important considerations in the form of a ten-step list that a person should follow when selling a business. They should do a complete financial plan to figure out what they need from the deal. It is very important to speak with a tax planning and estate planning professional to get a handle on the individual situation. This article also touches on the importance of considering family dynamics and long-term lifestyle and retirement goals. Think about health needs that might come up and create a pan that will make living off of portfolio assets a possibility. Make sure personal estate planning documents are kept up to date so that property is distributed the way the planner intends. Being social and building meaningful relations should also be a top priority for any person planning on selling their business and going into retirement.

See Larry Stein, 10 critical steps to selling your business and launching your next act, Market Watch, December 7, 2015.

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

December 7, 2015 in Estate Planning - Generally, Estate Tax, Income Tax, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

What Rights Do Posthumously Conceived Children Have To An Inheritance?

EmbryoA growing issue that is currently being hashed out in courtrooms and legislatures across the country concerns the legal rights of posthumously conceived children. If a child is born after the death of a mother or father what sort of legal rights to inheritance or Social Security survivor benefits are they entitled to? In 2012 The Supreme Court held in Astrue v. Capato that courts must look to State law to determine if a posthumously conceived child could inherit under intestacy laws. This column discusses the recent legislation in New York that was signed by Gov. Cuomo which attempts to clarify the inheritance rights of posthumously conceived children. The rapid development of modern reproductive technologies is going to make it more important for states to update and modernize their laws dealing with the legal status of posthumously conceived children when it concerns inheritance rights.

See Inheritance Rights Of Posthumously Conceived Children, Wealth Management, December 5, 2015.

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

December 7, 2015 in Estate Planning - Generally, Intestate Succession, Science, Technology, Trusts, Wills | Permalink | Comments (0)