Wills, Trusts & Estates Prof Blog

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

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Wednesday, December 17, 2014

New Case: Ferguson v. Critopoulos

Gavel2

In Ferguson v. Critopoulos, the Alabama Supreme Court held that a will beneficiary met the burden to show that the decedent provided for spouse outside the will.  The decedent’s will, executed nine years before his second marriage, gave his residuary estate to his first spouse who predeceased him, and made her three children alternate beneficiaries.  After her death, he remarried but did not change his will. His surviving spouse then claimed an omitted-spouse’s share under a statute giving an intestate share to the spouse “unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.” Ala. Code § 43–8–90. The trial court held that the intent was not proven, and the supreme court reversed, setting out guidelines for determining when a transfer outside of a will is in lieu of a testamentary provision. In this case, the testator changed the beneficiary of insurance policies and retirement accounts to the new spouse and considered changing his will but did not, all of which showed that the testator provided for the spouse outside of the will. Ferguson v. Critopoulos, No. 1130486, 2014 WL 4666935 (Ala. Sept. 19, 2014).

December 17, 2014 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Argument Over Ownership Resolved With Proof of Insurance

InheritanceAfter the death of Kristi Keland, a probate dispute arose between her sister Henni and her husband Tres over who would receive a collection of Native American baskets. Henni argued that she was left the baskets in her sister's will, which left Kristi's personal property to her sisters. Tres argued that the baskets were not Kristi's property, but his, because they were owned by Indian Rock Land & Cattle, LLC, which was controlled by Kristi and Tres.

In Keland v. Moore, an Arizona appeals court in an unpublished opinion held that Tres provided sufficient evidence of ownership of the baskets by providing an insurance policy held by the LLC which covered the valuable baskets, in addition to his testimony.

See Luke Lantta, Insurance as Evidence of Ownership, Bryan Cave Fiduciary Litigation, Dec. 10, 2014.

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

December 17, 2014 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2014

Planning for Incapacity

Power of attorney

An estate plan often focuses on what happens after you die.  However, if you have not made arrangements in the event you become mentally incapacitated, your plan is incomplete.  If your plan does not specify how financial or health care decisions will be made and you become incapacitated, a court-appointed guardian must act on your behalf.  Below is a list of documents that will ensure your affairs are in order:

  • Revocable Trust.  Also called a “living trust,” this is designed to hold most of your assets.  As trustee, you have control over the assets, but if you become incapacitated, your designee takes over.
  • Durable Power of Attorney.  This authorizes a designee to manage your property and finances, with the limitations you create.
  • Living Will. It expresses your preferences regarding life-sustaining medical treatment in the event you are unable to communicate your wishes. 
  • Health Care Power of Attorney.  This authorizes your designee to make medical decisions on your behalf in the event you cannot make or communicate them yourself. 
  • HIPAA Authorization.  Even if you have a health care power of attorney, some medical providers refuse to release medical information.  Thus, it is important to sign a HIPAA authorization allowing providers to release medical information to your designee.

See E. Hans Lundsten and Joseph Marion III, Estate Planning Pitfall—You Haven’t Planned for Incapacity, JD Supra Business Advisor, Dec. 15, 2014. 

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

December 16, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, December 15, 2014

Understanding Estate Planning

Estate-plan

While founders have vision, comprehend risk and reward, and are good at making decisions, they unfortunately do not understand the importance of having an estate plan. 

Because an estate plan is more than just a document that disposes of assets at death, maybe it is time to reframe the objective into terms a client can understand.  Just as a business plan is a road map to long-term success, an estate plan is a road map to achieving peace of mind.  Since there is no escaping death and taxes, we might as well help our clients plan for both. 

A great estate plan, like a great business plan, will provide a road map to success.  In order to create a plan, a client and his advisors should understand the client’s current personal and financial situation.  There are several basic documents that should be included in almost all plans: (1) a financial power of attorney; (2) a health care power of attorney; (3) a health care directive or living will; (4) a will detailing how assets should be distributed; and (5) beneficiary designation forms. 

Once your client understands the importance of planning, you must bring all the elements together into a working plan.  Your objective is to help the client develop, review and execute basic estate planning documents. 

See Lorri Ann Dunsmore, A Different Kind of Business Plan, Wealth Management, Dec. 10, 2014.

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

December 15, 2014 in Estate Administration, Estate Planning - Generally, Non-Probate Assets, Wills | Permalink | Comments (0) | TrackBack (0)

More Questions Than Answers In Affairs of $2 Million Estate

Question1The questions continue to pile up and answers are few in the events surrounding the estate of John P. Sheridan, Cooper Health System's CEO, and Joyce Sheridan. The New Jersey couple died on September 28 after being pulled from their home, which was on fire, with stab wounds on both. Additional information on the events of that night have not been released and while Joyce's death has been determined to be the result of homicide, the determination for John's death is still pending and being investigated. A will for the couple is yet to be found, and the application by one of the couple's sons to be named administrator of his parents' $2 million estate has been removed without any reason given.

See Angelo Fichera, Sheridan Son No Longer Seeking to Handle Parent's Estate, The Inquirer, Dec. 11, 2014.

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

December 15, 2014 in Current Affairs, Current Events, Estate Administration, Wills | Permalink | Comments (0) | TrackBack (0)

Challenges to James Brown's Will Continue

James BrownEight years after James Brown's death, the charitable trust he created has yet to serve its intended purpose. Brown left $2 million to the I Feel Good Trust to provide scholarships to children in South Carolina and Georgia, and provide needy children in his home states with a chance at an education that he did not have. However, to date no scholarships have been issued and his will is still be being challenged. Despite the will stating that any challenges will result in disinheritance, some of Brown's children have alleged that his will is invalid due to undue influence by his lawyers and managers.

See Larry Rohter & Steve Knopper, Downbeat Legacy for James Brown, Godfather of Soul: A Will in Dispute, The New York Times, Dec. 13, 2014.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law), Joel Dobris (Professor of Law, UC Davis School of Law), and Jenifer Santini (Attorney, Minneapolis, Minnesota) for bringing this article to my attention.

December 15, 2014 in Current Affairs, Current Events, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, December 14, 2014

Combating Elder Abuse

Elderly financial abuse

Elder abuse is not a commonly talked about topic, but is serious and demands attention. 

Resources such as wills, trusts, powers of attorney and guardians can be a helpful resource for individuals who have loved ones living in nursing homes or assisted living facilities.  However, these resources can also be used to hurt, abuse or neglect the very person they are intended to protect.  Fortunately, most states have laws and regulations that are designed for the protection of elderly or disabled adults.

North Carolina, for example, has established the Protection of the Abused, Neglected or Exploited Disabled Adult Act.  This act is designed to protect disabled adults.  Anyone who knows or has a reason to believe a disabled adult is being abused, neglected or exploited has a duty to report the information to the Department of Social of Services director.  Once the DSS director receives a report of possible abuse, the director performs an evaluation of the situation to determine if protective services are needed. 

Anyone involved in the abuse of an elderly or disabled person could face severe consequences.  In many states, such conduct results in that person facing felony charges.  The amount of money or property in the action typically determines the level or seriousness of the crime.  Moreover, any persons or workers in a facility who are responsible for providing care for a disabled or elderly person could be criminally charged or sued in civil court for certain actions of abuse or neglect.    

See Bellonora McCallum, Legal Corner: Protecting the Elderly From Abuse, Exploitation, Your Daily Journal, Dec. 12, 2014.

December 14, 2014 in Elder Law, Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2014

Joan Rivers' Separate Residence and Domicile

Joan_RiversAs I have previously discussed, Joan Rivers' will recently became public. In addition to leaving her assets to a trust and naming her estate's executors, her will also notably split her domicile and residency between separate states. Her will named her state of residency as New York and then named California as her domicile. California is often a preferred domicile for celebrities due to New York's high estate tax, while New York has a preferable probate process for residents due to speedy resolution and simplicity.

See Darla Mercado, Joan Rivers' Estate Planning Gambit: A New York State of Residence, Investment News, Dec. 11, 2014.

December 12, 2014 in Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

New Case on Waiver of Homestead Rights

House3After both members of a married couple died, their daughter inherited the couple's homestead through her father's will. The couple's son challenged the devise in court as impermissible under Florida Homestead laws. The couple's homestead had been conveyed by themselves, to themselves making them both tenants in common. The husband conveyed his interest in the homestead to his wife through a qualified personal residence trust, and the wife signed the deed to make the transfer effective. However, the husband died prior to the term of the QPRT and the property went back to his estate. The husband's homestead interest was left to his wife and then to his daughter in his will.

In Stone v. Stone, a Florida appellate court held that the transfers were not prohibited transfers of a homestead. The court found that the wife's signing of the deed, which included boiler plate language, constituted a waiver of her homestead rights, which allowed the daughter to inherit the property via her father's will.

See Jeffrey Skatoff, Homestead Rights Waived by Deed Boilerplate Language, Clark Skatoff, Dec. 10, 2014.

December 12, 2014 in Estate Planning - Generally, New Cases, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2014

Joan Rivers Will Leaves Assets to Trust

WillAs I have previously discussed, some details of Joan Rivers' will were released Tuesday after it was filed on December 5. However, many of the specific details including the exact amounts to be distributed were not made public due to the use of a living trust.

Rivers' died on September 4, after she suffered from cardiac arrest during a medical procedure on August 28. Reports from the New York State Health Department and the U.S. Department of Health and Human Services revealed that there may have been some problems with the clinic's care of Rivers, including that a staff member may have taken pictures of Rivers while she was under sedation, and that there were problems with the monitoring of Rivers' vital signs. It is unknown if Rivers' daughter will choose to file a lawsuit regarding her mother's care.

See Aaron Katersky & Lesley Messer, Joan Rivers' Will Revealed, Yahoo News, Dec. 9, 2014.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

December 11, 2014 in Current Affairs, Current Events, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)