Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Friday, March 14, 2014

CLE on Representing Estate and Trust Beneficiaries and Fiduciaries

CLEThe American Legal Institute, is sponsoring a CLE entitled, Representing Estate and Trust Beneficiaries and Fiduciaries, on July 24-25, 2014 in Renaissance Chicago Downtown.  Provided below is a description of the event:

This advanced course goes beyond basics and delves into topics that specifically affect beneficiaries and fiduciaries. Plus, registrants get solutions to their most pressing concerns through small roundtable discussions and networking opportunities.


Experienced planning chairs Steve Fast and Bob Whitman, and the rest of the nationally known faculty panel, provide two full days of knowledge, insight, and even a bit of humor as they update you on all the current law developments affecting beneficiaries and fiduciaries.

The program schedule and faculty for this course are still being finalized. Please check back to this page for updates.

Early Bird Discount: Register for the on-location course or full webcast by March 31, 2014 and save $200 by using coupon code CW001EB at checkout

 

March 14, 2014 in Conferences & CLE, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, February 27, 2014

American Idol Finalist in Probate Court

American idolLaKisha Jones, American Idol finalist, testified in probate court this past Tuesday, February 25. She testified during a hearing in which she was accused of not paying her father's nursing home bills. Jones was made her father’s legal guardian after he suffered from a stroke at the age of 67. He was receiving a social security payment of $1,047 monthly, $987 of those funds were supposed to be allocated to pay the nursing home. The probate judge determined that she was thousands behind in the payments and found Jones in contempt of court. 

See, Gary Ridley, Watch 'American Idol' Finalist LaKisha Jones Testify In Genesee Probate Court, MLive, Feb. 25, 2014.

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

February 27, 2014 in Guardianship, New Cases, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 25, 2014

California Married Couples Owe Each Other A Duty

Rings According to the California Family Code, married persons owe each other " a duty of the highest good faith and fair dealing." The duty has been compared to that of a trustee. The duty is applied to transfers between the spouses and to the management of community property. The duty arises most frequently when dealing with community property. As a result, a spouse's retirement account, which contains contributions during the marriage, is community property, despite the fact that the account is solely in only one spouse’s name. In order for any changes to the death beneficiary to affect the entire account, written permission is required from the non-participating spouse. Thus, if a spouse withdrawals funds from his retirement for their benefit they are probably violating the duty.

 

What are the consequences of a violated duty? The other spouse can bring a claim and involve the court. The statute indicates “a court may order an accounting of the property and obligations of the parties to a marriage and may determine the rights of ownership in, the beneficial enjoyment of, or access to, community property, and the classification of all property of the parties to a marriage.” Additionally, even if the breaching spouse files for bankruptcy this claim may not be discharged if the breaching spouse had “a culpable state of mind involving knowledge of, or gross recklessness” regarding the duty.

See Dennis Fordham, Estates Planning: Fair Dealing and Married Persons, Lake County News, Feb. 22, 2014.

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

February 25, 2014 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 19, 2014

CLE on What the Peierls Cases Mean For Trust Fiduciaries and Their Advisors

The American Law Institute Continuing Legal Education (ALI CLE) is presenting a telephone seminar and audio webcast entitled, CLEWhat the Peierls Cases Mean For Trust Fiduciaries and Their Advisors, on Tuesday, February 25, 2014 at 12:30 p.m.- 2:00 p.m. Eastern. Provided below is a description of the event:

Learn the significance of the Peierls decisions from attorneys who represented the Peierls family in the Delaware Court of Chancery and Supreme Court.

Attendees will receive practical advice on how to migrate trusts to Delware, as well as learn the significance of moving the situs of trust and the impact of the Peierls decisions on the various methods available under Delaware law to modify irrevocable trusts.

Topics Include :

  • the prior consent petition practice in Delaware
  • key holdings of the Delaware Supreme Court opinions
  • Impact of the Supreme Court decisions on the methods for modifying trusts under Delaware law
  • Common reasons why non-Delaware residents utilize Delaware trusts and how a trust may be modified under under Delaware law in order to take advantage of Delaware's statutes
  • the significance of the Peierls decisions with respect to trusts situs and governing law

February 19, 2014 in Conferences & CLE, New Cases, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Nevada Supreme Court Rules on Burden of Proof for Undue Influence

GavelIn the absence of a fiduciary relationship, a preponderance of the evidence is sufficient to prove undue influence.  In a case of first impression,  In re Estate of Bethurem, 313 P.3d 237 (Nev. 2013), the Supreme Court of Nevada held that in the absence of a fiduciary relationship between the person accused of undue influence and the testator, undue influence may be proved by the preponderance of the evidence which means that the contestant must show that the disposition of property in the will was “more likely than not” the result of undue influence.

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

February 19, 2014 in New Cases, Professional Responsibility, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, February 16, 2014

Duty to the Remainder Beneficiaries?

Gavel
The trustee of a revocable trust owes no fiduciary duties to the remainder beneficiaries.  The settlor of revocable trust was also the trustee.  The principal asset of the trust was the settlor’s farm.  Some years after the creation of the trust, the trustee sold the farm to one of her children for less than the fair market value.  The buyer was a remainder beneficiary along with the settlor’s two other children.  One of the other children objected to the sale, arguing that the trustee had breached her duties to the other remainder beneficiaries. 
 
In Fulp v. Gilliland, 998 N.E.2d 204 (Ind. 2013), the trial court found a breach of fiduciary duty and the intermediate appellate court affirmed the decision. The court reasoned the trustee has sold the farm as its settlor and had therefore amended the trust.  On appeal, the Supreme Court of Indiana held that the settlor (in this case the trustee) has no duties to the remainder beneficiaries and specifically stated that the settlor had not amended the trust. 
 
Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.
 

February 16, 2014 in Malpractice, New Cases, New Legislation, Professional Responsibility | Permalink | Comments (1) | TrackBack (0)

Monday, February 10, 2014

CLE on Trusts and Family Businesses

CLEThe American Law Institute Continuing Legal Education (ALI CLE) is presenting a telephone seminar and audio webcast entitled, 3.8% Net Investment Income Tax: Trusts and Family Businesses, on Tuesday, February 18, 2014.  Provided below is a description of the event:

 

 

Register today for this CLE program on the 3.8% Net Investment Income Tax (“NII Tax” or “NIIT”) so you can learn about the impact of the Final Regulations on trusts and family businesses. These Final Regulations under Internal Revenue Code Section 1411 issued on December 2, 2013 (“Final Regulations”) have been hailed as “taxpayer-friendly” and a major improvement over the original regulations proposed in 2012. By the end of this program, you will have a firm understanding of the NII Tax and how it affects trusts and family businesses.

Programming note: although the program assumes a familiarity with the NII Tax, presenters will highlight its essential points.

Discussion will include:

 
determining which trusts are subject to the NII Tax and which are not (including the treatment of grantor trusts)
the mechanics of the determination of the NII Tax for a non-grantor trust or estate
the disproportionate impact of the NII Tax on fiduciaries
inter-relationship between the mechanics of distributable net income (“DNI”) and the computation of the fiduciary NII Tax
when and how capital gains – which are ordinarily excluded from DNI – can be included in DNI to reduce the overall NII Tax paid by a trust and its beneficiaries
and more!

February 10, 2014 in Conferences & CLE, Estate Planning - Generally, Income Tax, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, February 6, 2014

Pope's Personal Notes Published

John paul IIPublic opinion is split between praise and criticism of John Paul II's secretary for allowing the late pope's personal notes to be published despite the fact that his will indicated he did not want that to happen. The pope wanted his notes burned post-mortem. However, Rev. Stanislaw Dziwisz, the person entrusted with this responsibility, claims he "did not have the courage " to burn the documents. Condemnation seems to have outpaced any positive reactions to the Reverends actions. Dziwisz published 640 pages the hardcover book containing the notes and claims that the book is supposed to help those lost get back on a spiritual path.

See Associated Press, Hero or Traitor? Pope's Aide in Polish Controversy, Kuwait Times, Feb. 4, 2014.

February 6, 2014 in Current Affairs, Current Events, Professional Responsibility, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, February 2, 2014

City Council Member Accused of Mismanaging Inheritance

Classic carDetroit city council member, George Cushingberry Jr. is being accused of mishandling Roxanne Hudson’s inheritance. Specifically, Hudson is accusing Cushingberry of cheating her out of two classic vehicles a 1926 Oakland and a 1976 Coupe De Ville. Hudson has filed a lawsuit, which indicates that her husband died two years earlier intestate. Further, the lawsuit explained that Cushingberry said he would take care of the funeral and medical expenses and assist her with some legal help, but Hudson says that never happened. She claims that Cushingberry took her husband's cars and sold them without giving her any of the cash received. Todd Perkins, Cushingberry's attorney said that the council member would soon be vindicated.   

See Widow Sues Cushingberry for Mishandling Inheritance, Husband's Classic Cars, My Fox Detroit, Jan. 22, 2013.

February 2, 2014 in Current Affairs, Current Events, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Attorney Accused Of Wire Fraud

TrustGomer Thomas Williams, and attorney and associate with a Philadelphia law firm, has been charged with one count of wire fraud. The FBI is currently investigating the case. Sources indicate that in a five-year period starting in 2007, Williams swindled $503,361 dollars from four of his trust clients by overbilling for legal work that was not conducted. Williams was the trustee for the client's estates, which allowed him to have complete control over the funds. The information accuses Williams of breaching his fiduciary duty in transferring funds to pay personal expenses. If Williams is convicted, he faces between 33 to 41 months in prison, a possible fine, a three-year supervision period, and a $100 special assessment.

See US: Lawyer Charged With Stealing Client Funds, New Kerala  Jan. 31, 2013.

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

February 2, 2014 in Current Events, New Cases, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)