Wills, Trusts & Estates Prof Blog

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

Friday, June 19, 2015

Direction To Pay From The Probate Estate Overrides Statutory Scheme

Gavel 2The decedent’s will divided the probate estate between two beneficiaries. The probate estate was one-fifth the value of the non-probate assets which also passed to the two will beneficiaries. The Nebraska inheritance tax on the beneficiary who was also named as the personal representative was nine times that on the gift to the other beneficiary. The personal representative’s accounting treated the inheritance taxes as an expense of estate administration based on language in the will directing the personal representative “to pay from my probate estate” all inheritance, legacy, or estate taxes payable by reason of the testator’s death on all property whether passing under the will or otherwise. The accounting was approved and the other beneficiary appealed.

In In re Estate of Shell, the Nebraska Supreme Court affirmed, holding that the will language directing the payment of taxes from the probate estate was sufficient to override the statutory scheme assessing the tax against each beneficiary.

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

June 19, 2015 in New Cases, Wills | Permalink | Comments (0)

Thursday, June 18, 2015

CLE On Supreme Court's Decision On Same Sex Marriage

CLE PictureThe American Bar Association is presenting a CLE entitled, News From the Hill: Supreme Court's decision on Same Sex Marriage, Tuesday, July 7, 2015, 12:00-1:30pm Central, online.  Here is why you should attend:

If the Court rules against marriage equality, then the current patchwork of laws will continue and marriages entered into under earlier constitutional rulings may be called into question. In that case, interesting conflicts of laws issues will continue. The ruling is not expected to affect the status of Registered Domestic Partners and Civil Union Partners who are recognized as married under their various state laws but not under federal law, except perhaps for social security. But conflicts questions will continue to abound for these couples because some marriage equality states recognize registered partners as married spouses and it is still unclear whether federal agencies, like the IRS, recognize such couples as married or not. The panelists will be prepared to address whatever questions arise from the Supreme Court's opinion no matter which way the ruling goes.

June 18, 2015 in Conferences & CLE, Current Events, New Cases | Permalink | Comments (0)

“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)

Wednesday, June 17, 2015

The Child’s Relationship With A Biological Parent Does Not Bar Equitable Adoption

GavelW gave birth to S while she and her husband, H, were separated. H and W agreed that H would treat S as his child, which he did, and his name appeared on her birth certificate. At age 14, S learned that H was not her biological father, met and from time to time saw her biological father, N. N never supported S. After the deaths of W and H, a dispute arose between S and her parent’s son C over inheritance rights in W and H’s estates. In the ensuing litigation, C moved for partial summary judgment on the issue of equitable adoption which was granted.

In Sanders v. Riley, the Georgia Supreme Court reversed, holding that there was sufficient evidence of an agreement between H and N for S’s adoption by H to defeat summary judgment on the issue. The court also held as a matter of law that once the requirements of equitable adoption are satisfied, the child does not become “unadopted” by establishing a relationship with a biological parent.

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

June 17, 2015 in Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, June 16, 2015

Statute Limits But Does Not Supersede The Equitable Power Of The Court To Adjust Elective Share

Gavel 2After protracted litigation over the surviving spouse’s elective share, the trial court fixed the amount of the elective share and made an additional equitable award to the surviving spouse based on the increase in value of the estate assets and the income earned by the estate during the ten years of litigation. The intermediate Colorado appellate court reversed, holding that under the Colorado elective share statute, the court has no equitable authority to modify the elective share amount which must be calculated as of the date of death of the deceased spouse.

In Beren v. Beren, the Colorado Supreme Court reversed and remanded, holding that the statutory definition of the elective share as a pecuniary amount calculated as of the date of death supplants the court’s general equitable authority which supplements the provisions of the probate code and prevents an increase in the amount based on appreciation of and income earned by estate assets, but does allow for equitable adjustments based on excess administrative costs and other losses due to protracted litigation.

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

June 16, 2015 in Current Events, New Cases, Wills | Permalink | Comments (0)

Monday, June 15, 2015

Time To Appeal Disallowance Tolled When Certified Mail Returned Unclaimed

GavelThe estate rejected a creditor’s claim and mailed notice of the rejection to the creditor by certified mail as required by Wyoming law. The postal service erroneously stamped the mail “unclaimed” and returned it to the estate. Three months later, the creditor asked the court about the status of its claim, was informed that the rejection had been returned and requested a copy of the rejection which was received six days later. Two weeks later, the creditor received a faxed copy of the original mailing. More than thirty days after receipt of the faxed copy, the creditor filed a complaint objecting to denial of its claim which the court dismissed as time barred.

In Accelerated Receivable Solutions v. Hauf, the Supreme Court of Wyoming affirmed, holding that the estate had strictly complied with the statutory requirement of notice by sending the denial by certified mail, but that the notice was constitutionally inadequate because it was returned unclaimed. The 30-day period to object was therefore tolled until constitutionally adequate notice was received by the creditor which at the latest occurred when the faxed copy was received. Since more than thirty days passed before the creditor appealed the rejection, the claim was forever barred.

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

June 15, 2015 in Estate Administration, New Cases | Permalink | Comments (0)

Sunday, June 14, 2015

Provision In LLC Agreement Governs The Decedent’s Interest On Death

GavelThe decedent owned a 50% membership interest in an LLC created in New Jersey 18 months before his death in Florida. This will poured over his residuary estate in to an existing trust the beneficiaries of which were his children and his unmarried partner; decedent was estranged from his spouse. Litigation ensued between the personal representative and the surviving partner over the status of the LLC membership interest and the trial court held it to be probate property.

In Blechman v. Estate of Blechman, the intermediate Florida appellate court reversed, holding that language in the LLC agreement providing that under the circumstances of this case the membership interest would “pass to and immediately vest in” the decedent’s descendants created a valid will substitute.

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

June 14, 2015 in New Cases, Trusts, Wills | Permalink | Comments (0)

Saturday, June 13, 2015

Lack Of Notice To The Biological Father Does Not Invalidate Long-Established Adoption.

GavelIn 1961, a non-marital child was properly adopted under Texas law which at that time required consent only of the child’s mother; father had no notice of the birth or adoption. Thirty-six years later, the child found the father and they established a relationship. After father’s death intestate in Florida, the child and the father’s remote cousins filed competing petitions for administration. The trial court found for child, holding that the Texas adoption was not entitled to full faith and credit.

In Kemp & Assocs. v. Chisholm, the Florida intermediate appellate court reversed, holding that the adoption was entitled to full faith and credit, both for public policy reasons favoring the finality of adoptions and because the United States Supreme Court decision in Stanley v. Illinois, 405 U.S. 645 (1971), requiring notice to the biological father of a non-marital child of the pending adoption of the child could not be retroactively applied to long-closed cases such as this adoption completed in 1961.

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

June 13, 2015 in Guardianship, New Cases | Permalink | Comments (0)

Friday, June 12, 2015

Known Sperm Donor Need Not Receive Notice Of Adoption Of Child Conceived Through IVF

Gavel 2A and B, a married same-sex couple, petitioned for joint adoption of their son, N, who was conceived through IVF using a known sperm donor and born to A during the marriage. A and B appear on the birth certificate as N’s parents. The trial court denied the petition, holding that the sperm donor must receive notice of the adoption.

In In re Adoption of a Minor, 29 N.E.3d 830 (Mass. 2015), The Massachusetts Supreme Judicial Court transferred the issue on its own motion, reversed the trial court and remanded, holding that because A and B are N’s only lawful parents, the child having been born through assisted reproduction to A with the consent of her spouse, and that the possibility that the sperm donor could establish parentage does not require notice of the adoption. 

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

June 12, 2015 in Guardianship, New Cases | Permalink | Comments (0)

Sunday, June 7, 2015

Probate Avoidance Just Became Easier In California

GavelWhen Larry Mabee created a revocable trust with himself as trustee, he transferred to the trust all his real property holdings but failed to transfer the deed. When he died, the successor trustee claimed all the real estate assets but was challenged in probate by creditors of the estate.

In Ukkestad v. RBS Asset Finance, Inc., the California Court of Appeals held that a transfer of real property to a revocable trust will be sufficient without a formal transfer of deed if two requirements are met. First, the settlor must also be the trustee and, second, must comply with the statute of frauds. This is not an ideal method to accomplish a transfer but may be useful in some situations.

See Gregory Monday, Court Approves Easy Probate Avoidance for Real Estate, Wealth Management, June 1, 2015.

June 7, 2015 in New Cases, Trusts | Permalink | Comments (0)