Wills, Trusts & Estates Prof Blog

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

Thursday, March 15, 2018

Article on Access to Justice: What to Do About the Law of Wills

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-03-15/5cd72b98-f86d-4752-b414-df525dc763ac.pngIris J. Goodwin published an Article entitled, Access to Justice: What to Do About the Law of Wills, 2016 Wis. L. Rev. 947 (2016). Provided below is an abstract of the Article:

Part I of this Article places the online, do-it-yourself will in the context of the push to enlarge access to justice for people of poor or moderate means in civil law matters. Part I has three subsections. The first of these subsections examines the recent movement to expand pro se representation where sundry civil law rights are concerned. The second subsection explores the significance of pro se opportunities in non-litigious circumstances such as estate planning. The third subsection considers what might be at stake for the poor and middle class in the right to dispose of property at death. Part II treats the online, do-it-yourself will and its tenuous position in the current law of wills. Part III makes the case that the online, do-it-yourself will is not so clearly an attested will but is a hybrid, with attributes of a holographic instrument also. This insight sets the stage for the later argument that an exception in the law with respect to the rigorous treatment of legal language--a kind of interpretive generosity--previously extended to the holographic will is appropriately applied to this newer vehicle created via self-help. Part IV sets out the rigorous standards for execution that any will--lay-drawn or otherwise--must surmount. This Part examines both the historic requirements for execution (many of which are still in play in some states) and recent reforms, building to the observation that the attested will and the holographic one, even though each is predicated upon a distinct legal ethos, are starting to merge. This observation invites use of standards heretofore applicable to the holographic will (standards like interpretive generosity) to the attested (or hybrid). Part V leaves behind the rigors for executing a will and turns to the other legal challenge for the person who would create a will without assistance of counsel--the canons of construction for testamentary language. If the rigors of execution have begun to ameliorate, the standards for interpreting legal language are still robust. Part VI examines interpretive largess as it has been applied to holographic wills and suggests that it be extended to the online, do-it-yourself will. Part VII acknowledges the potential that an expanded use of interpretive largess could have on the law of future interests and suggests ways to cabin it by embedding its application in a rigorous methodology and then limiting its application.

March 15, 2018 in Articles, Estate Planning - Generally, Professional Responsibility, Wills | Permalink | Comments (1)

Monday, March 12, 2018

CLE on Drafting Effective Wills and Trusts

0000000 CLEThe National Business Institute is holding a conference entitled, Drafting Effective Wills and Trusts, which will take place on Thursday, March 15, 2018 at the Millennium Maxwell House Hotel in Nashville, TN. Provided below is a description of the event:

Program Description

Help Your Clients Meet Their Estate Planning Needs

Do you have a clear understanding of the basic tax issues, medical decisions, and planning documents that can complicate the estate planning and probate processes? Are you prepared to answer your clients' tough questions about planning for final wishes? Attend this seminar to gain insight into the fundamentals of preparing estate planning documents, including wills, trusts, and ancillary documents. Discover the pros and cons of using various types of documents, as well as the tax ramifications involved. Register today!

  • Choose the planning document that is best suited for your client.
  • Provide protection for minors, incompetent persons, and beneficiaries with special needs.
  • Learn how and when to use revocable living trust, pour-over wills, and durable powers of attorney.
  • Reduce your clients' future tax burdens.
  • Use a living will or durable power of attorney for health care to help the client control end-of-life medical decisions.
  • Handle ethical issues that arise in estate planning, such as competency of the client and conflicts of interest.

Who Should Attend

This basic level seminar will provide fundamentals of drafting wills and trusts for:

  • Attorneys
  • Paralegals
  • Trust Officers
  • Accountants
  • Tax Professionals

Course Content

  1. Fundamental Principles of Will Drafting
  2. Using Living Trusts and Powers of Attorney as Estate Planning Tools
  3. Basic Tax Considerations - What You Need to Know in Order to Choose the Appropriate Plan
  4. Ethics and Estate Planning
  5. Planning Methods to Control Medical Treatment

Continuing Education Credit

Continuing Legal Education – CLE: 6.00 *

Financial Planners – Financial Planners: 7.00

International Association for Continuing Education Training – IACET: 0.60

National Association of Legal Assistants, Inc. – NALA: 6.00 *

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 7.00 *

National Federation of Paralegal Associations, Inc. – NFPA

Professional Achievement in Continuing Education – PACE: 7.00 *

* denotes specialty credits

March 12, 2018 in Conferences & CLE, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, March 6, 2018

Harper Lee’s Will, Unsealed, Only Adds More Mystery To Her Life

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-03-06/8f0d7fa7-f801-45e1-9e56-daa7aa4dc4f9.pngHarper Lee, author of “To Kill a Mockingbird,” left behind a trail of unanswered questions when she died in her sleep two years ago at age 89. One lingering query was why the renowned author had decided to publish another book 55 years after her masterpiece was released following a seemingly dry interim. Are there, perhaps, other unknown works that remain unpublished? And if so, who has the rights to these potential literary giants? The answers to these questions may go unanswered for some time.

Lee was an incredibly private person and disfavored the spectacle of the press. The will she signed on February 11, 2016, just eight days before her death, was successfully sealed after Lee’s attorney convinced a probate judge that making the will public might lead to the harassment of the beneficiaries. The New York Times, unconcerned with Lee’s desire for privacy, filed suit to have the will made publicly available. Archie Reeves, The New York Times’s lawyer, commented: “It’s a public record, and the press and the public have a right to public records.” Fortunately for Lee and her family, the will is absent much detail as it leaves a majority of her assets to a trust: “It is not an uncommon will, and it is typically what we term a pour-over will where anything in the estate goes over to the trust and they don’t have to disclose the terms of the trust,” said Sidney C. Summey, a trusts and estates lawyer in Birmingham.

See Serge F. Kovaleski & Alexandra Alter, Harper Lee’s Will, Unsealed, Only Adds More Mystery To Her Life, The New York Times, February 27, 2018.

Special thanks to Felix B. Chang, Associate Professor at the University of Cincinnati College of Law.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

March 6, 2018 in Books, Books - Fiction, Current Events, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (1)

Friday, March 2, 2018

Wills Road Map: Practical Considerations in Will Drafting, 3rd ed. 

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-03-01/8be0ed7e-627e-4976-9c74-492387f50c40.pngSteve R. Akers, Bernard E. Jones, & R. J. Watts, II, with 3rd edition update by Casey A. Barthel, recently published a book entitled, Wills Road Map: Practical Considerations in Will Drafting, 3rd ed. (2018). Provided below is some information about the book:

Wills Road Map: Practical Considerations in Will Drafting began life as the well-known paper “Anatomy of a Will” from the TexasBarCLE seminar “Building Blocks of Wills, Estates and Probate.” Intended for both general practitioners who occasionally prepare wills for their existing clients as well as for experienced estate planning attorneys, Wills Road Map brings together legal concepts from wills, probate, and trust law to provide expert guidance in properly assembling a will.

Featuring a basic discussion of estate tax planning, with a focus on various state law issues, Wills Road Map also addresses principles that can affect the will beyond the language of the will itself. Other subjects include doctrines affecting the validity of the will and a review of the legal significance and effect of numerous specific wills provisions.

The new third edition of Wills Road Map reflects legislative changes from the regular session of the Eighty-fifth Legislature, as well as case law changes. Other updates include a new discussion about digital assets and revised sample wills. Finally, the third edition adds the following:

  • Client intake questionnaires
  • Self-proving affidavits
  • Access to over 20 TexasBarCLE articles of interest in the digital download
  • A will execution ceremony checklist

The Wills Road Map: Practical Considerations in Will Drafting Digital Download is included with purchase and may also be purchased separately. The digital download contains the entire book as a hyperlinked and word-searchable PDF file. All tables of contents, cross-references, and indexes are linked to substantive text within the file. Texas and federal case and statute citations are linked to online versions in the Casemaker Web Library.

March 2, 2018 in Books, Books - For Practitioners, Books - For the Classroom, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, February 28, 2018

CLE on 42nd Annual Course: Advanced Estate Planning & Probate

0000000 CLEThe TexasBarCLE and the Real Estate, Probate and Trust Law Section of the State Bar of Texas are co-hosting a conference entitled, 42nd Annual Course: Advanced Estate Planning & Probate, which will take place from June 13 through 15, 2018, at the Sheraton Dallas Hotel in Dallas, TX. Provided below is a description of the event:

Tentative Program: Hours and topics are subject to change. Check back in March for more complete information.

Tentative Topics

• Case Law Update
• Estate Planning Gems
• The View from Washington
• The Largest Probate Damage Award in Texas History
• Property Characterization of Trust/Partnership Distributions
• Management Trusts from Start to Finish
• Planning with Retirement Accounts in 2018 and Beyond
• Divorce-Proofing the Estate Plan
• Recent Developments in Estate Planning
• Tips on How to Prepare for the TBLS Estate Planning & Probate Exam
• Of Mice and Metadata - Ethics, Client Confidentiality, and the Duty of Competence in the Digital Age
• What’s the Meaning of All This? “Supports and Services” and Alternatives to Guardianship
• Probate Matters: A View from Both Sides of the Bench
• Fiduciary Duties in Limited Partnerships
• Highlights of the New and Improved Texas Durable Power of Attorney Act: A Panel Discussion
• Planning for the Quality of Life in the Last Quarter of Life
• What Every Estate Planner Needs to Know About International Law
• Planning and Administration Issues Associated with Private Foundations and Other Charitable Vehicles
• How to Document Charitable Gifts to Make Sure Donor Intent Is Carried Out
• Fiduciary Compensation
• Ethical Issues in the Transition of a Law Practice in Life or Death
• Will Contests Update
• How to Read Appraisals for Estate & Gift Tax Purposes
• What Planners Need to Know About Defending the Estate Plan

Tax Breakout:
• How to Blow It and Not Know It: Inadvertent Termination of a Corporation’s S Election by Ineligible Shareholders
• BDIT/678, Grantor, QSST
• Representing Fiduciaries After Death
• Basis for Comparison: How Income Tax Management Is Changing the Face of Estate Planning

Litigation Breakout:
• Standing, Capacity and Necessary Parties in Trust Litigation
• Caught Between a Rock and a Hard Place: Fiduciaries Caught Between Conflicting Beneficiaries
• Duties of Guardian/Attorney Ad Litem in Non-Guardianship Litigation
• Temporary Relief Options in Trust Litigation

February 28, 2018 in Conferences & CLE, Current Events, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, February 27, 2018

Two Court Rulings Highlight Divorce Planning Loopholes

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-27/ab777af6-124b-487d-a32d-ff3174ac2458.pngCareful drafting and continual monitoring of estate documents are critical to avoiding future pitfalls, especially in cases involving divorce. Two recent court cases serve as a paradigm for this need. In the first case, the Connecticut Supreme Court held that decanting was authorized in a divorce action. This effectively allowed the husband, who was the beneficiary of a 1983 trust established by his father, to transfer the trust assets into a new trust that prevented his wife from reaching them. In a New York case, the decedent named her ex-husband as executor and beneficiary of her estate. The alternate for both positions was the ex-husband’s father. Under New York law, an ex-spouse may not serve as an executor or beneficiary. The New York court held that this disqualification did not apply to the ex-husband’s father.

See Michael S. Fischer, Two Court Rulings Highlight Divorce Planning Loopholes, Financial Advisor, November 27, 2017.

February 27, 2018 in Estate Administration, Estate Planning - Generally, New Cases, Trusts, Wills | Permalink | Comments (0)

4 Estate Litigation Predictions For 2018

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-27/15a70323-f48d-41fb-94d7-0f2a87e18071.pngThe start of a new year is a great time to look forward and predict upcoming trends in estate litigation for 2018. First, it is incredibly likely that the overall volume of estate litigation will increase. As our society ages and passes down more wealth than any other time in human history, the potential for lawsuits continues to grow. Second, the continual inclusion of arbitration clauses in wills and trusts will increasingly serve as the basis of litigation as executors and trustees invoke them to compel binding arbitration. Those opposing these clauses argue that they are void under the Uniform Trust Code, void against public policy, and should not have the power to bind beneficiaries who were never in a position to agree to the arbitration terms. Third, in terrorem, or no-contest clauses, will expand in both breadth and scope. Over the past decade, estate planning attorneys have included broader no-contest clauses in an effort to prevent contests involving beneficiary designations, claims against an executor or trustee for breach of fiduciary duty, and actions that retard the administration of an estate or trust. Finally, the mandatory and default rules under the Uniform Trust Code will be expounded as estate planning attorney’s attempts to limit certain fiduciary duties infringe upon state laws.

See Will Sleeth, 4 Estate Litigation Predictions For 2018, Financial Advisor, February 14, 2018.

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

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

February 27, 2018 in Estate Administration, Estate Planning - Generally, Travel, Wills | Permalink | Comments (0)

Monday, February 26, 2018

Charles Manson’s Body Has Been on Ice for Three Months. Here’s Why

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-26/abe964ef-4a13-4e7a-aa0d-c0ee1c111838.pngCult leader Charles Manson died almost three months ago at the age of 83. His body remains in storage as at least four people fight for the right to dispose of the body and his estate. Jason Freeman, one of the first official claimants to Manson’s corpse, has said that he is Manson’s grandson and was the first person to file documents in Los Angeles Probate Court to lay claim to the estate. Michael Brunner filed a claim in probate court fewer than twelve hours before a judge was expected to make his decision regarding the court’s authority to hear the issue. Brunner’s mother was Mary Brunner, who numbered among Manson’s first followers. Brunner’s attorney filed a petition that included a birth certificate for Michael Manson. The parents on the birth certificate are Mary Brunner and Charles Manson.

Matthew Robert Lentz is the third individual fighting for Manson’s estate. He claimed to be Manson’s son in a 2012 interview, but blood tests failed to confirm the relationship. Lentz was named as the beneficiary of a will supposedly written by Manson nine months before his death. The fourth and final claimant to Manson’s estate is Michael Channels. Channel’s says he started a friendship with Manson 30 years ago because he had a desire to “meet the devil.” Channels possesses a rival will and said he received the document soon after it was written in 2002. In this document, Manson leaves his estate to Channels and writes: “I have disinherited both known sons and any unknown children in the present and in the future.” The next court date to hopefully settle some of these issues is March 7.

See Stephanie Becker, Charles Manson’s Body Has Been on Ice for Three Months. Here’s Why, CNN, February 13, 2018.

February 26, 2018 in Current Events, Death Event Planning, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, February 22, 2018

Trusts in the Age of Trump: Time to Re-Engineer Your Estate Plan

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-02-22/02c53198-0d17-4fcf-b733-503cd0185703.pngThe Tax Cuts and Jobs Act makes some exciting alterations to various parts of the tax code. For estate and tax planners, ranking among the most notable changes are the increase to the estate tax exemption thresholds and tax breaks for qualified business income. As might be expected, clever lawyers have started pushing the limits of these new rules to mitigate taxes for themselves and for their clients. A ploy concocted for a client by Steven Oshins, an estate lawyer in Las Vegas, involves taking his client’s $1.6 million in yearly earnings and placing portions into eight separate non-grantor trusts for his 3 children and 8 grandchildren. Since each trust can shield up to 20% of the transferred profits, maxed out at $150,000, this maneuver saves the owner nearly $90,000 in taxes. A delighted Oshins commented on the situation: “Congress can't contemplate what creative estate planners will come up with.”

See Ashlea Ebeling, Trusts in the Age of Trump: Time to Re-Engineer Your Estate Plan, Forbes, February 13, 2018.

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

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

February 22, 2018 in Current Events, Estate Planning - Generally, Estate Tax, Income Tax, New Legislation, Trusts, Wills | Permalink | Comments (0)

Tuesday, February 20, 2018

Before There Was #MeToo, There Was Mary Cunningham

Merlin_133384214_67ca0c08-73f9-467c-ad90-3c6f4d9b5a77-blog427Mary Cunningham Agee is lovingly known as the “Tomato Lady” in her tightknit community of St. Helena, California. She patiently grows heirlooms and graciously hands these out to neighbors along with an assortment of cabbage, cauliflower, and basil. Each side of her picturesque 4,000-square-foot home is lined with vineyards that are cultivated each season to produce twenty-five cases of a delightful pinot noir.

This sunshine-and-roses scene, while pretty on the surface, offers a pleasant, but shallow façade for Agee’s current troubles. Ms. Agee’s husband of 35 years, Richard Agee, a former CEO of Bendix and once considered to be a rising corporate star, died this past December. In the last few, mentally troubled weeks of his life, he revised his will to include his previously estranged children and initiated divorce proceeds against Ms. Agee. Due to these last-minute changes, her days are now filled with a contentious legal battle involving Mr. Agee’s children and a will that was arguably written while Mr. Agee was not of sound mind. This recent twist is but a single piece of a turbulent epic that stretches back nearly four decades, to what is arguably the first widely-followed sex scandal in corporate America.

See Amy Chozick, Before There Was #MeToo, There Was Mary Cunningham, The New York Times, February 10, 2018.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

February 20, 2018 in Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)