Wills, Trusts & Estates Prof Blog

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

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Sunday, April 26, 2015

Article on Conservatorships, Capacity and Crystal Balls

Ralph_BrashierRalph C. Brashier (Cecil C. Humphreys Professor of Law, The University of Memphis) recently published an article entitled, Conservatorships, Capacity, and Crystal Balls, Temp. L. Rev. 1-46 (2014).  Provided below is the article’s abstract:

Courts have often stated that the imposition of a conservatorship over a person’s assets is not a determination that the individual lacks testamentary capacity, because the capacity required to manage one’s assets is greater than that required to devise them. Nevertheless, some statutes and judicial orders now prospectively deprive a conservatee of will-making ability, regardless of the conservatee’s actual testamentary capacity at the time of will execution. This Article demonstrates that such statutes and orders are inconsistent with modern conservatorship reforms, which seek to impose the least restrictive alternative needed to promote the conservatee’s best interest, and also with venerated wills principles, which preclude predictions about an individual’s future ability to devise. In particular, this Article demonstrates that such crystal ball pronouncements are improper not only because they single out conservatees for infantilizing treatment, but also because they ignore obvious and well-established less intrusive options that are adequate to quell concerns about wills executed by conservatees.

April 26, 2015 in Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0) | TrackBack (0)

Friday, April 24, 2015

Family Files Suit Against Attorney Reaping Millions From Will

Gavel2When Robert Mardigian wanted to put his financial affairs in order, he turned to his longtime friend and attorney, Mark Papazian.  Mr. Papazian subsequently drafted a will and trust that left the bulk of Mardigian’s fortune to Papazian and his two children. 

Yet, because Mardigian was unrelated to Papazian, the will was improper under the Michigan Rules of Professional Conduct, making clear that attorneys “shall not” prepare a will for a non-related client that includes a substantial gift for the attorney.

Now, Mardigian’s survivors are seeking that the gifts to Papazian and his children be disallowed.  A county judge ruled in their favor, and the case is now before the Michigan Court of Appeals.  “For over 100 years, the Supreme Court has ‘bluntly warned’ lawyers not to receive gifts from clients under wills they themselves have drafted.  Mark Papazian did it anyway . . . in flagrant disregard of his ethical duties as a member of the bar,” Gerald Gleeson, an attorney for Mardigian’s brother stated in a court filing. 

See Paul Egan, Family Fights Attorney Getting Millions From Client’s Will, Detroit Free Press, Apr. 11, 2015.

Special thanks to Jim Hartnett (Hartnett Law Firm) for bringing this article to my attention.

April 24, 2015 in Estate Administration, Estate Planning - Generally, Professional Responsibility, Wills | Permalink | Comments (0) | TrackBack (0)

Planning Tips For Unmarried or Same-Sex Couples

Hand HEartEstate planning for unmarried or same-sex couples should be a primary concern due to the fewer legal protections available to partners at the end of life and death of the other. State law will often require a written document to execute any pre or post death wishes, making the need for living and attested wills paramount to guarantee the rights one wants the other to have. In addition, couples with children will be better able to dictate post death guardianship of children in the face of potential legal challenges by other relations. Ultimately, clients will best be served if these potential issues and solutions are made clear even if broaching the subject might be awkward for some.

See Kathy Kristof, Unmarried Couples? Use These Planning Strategies, Financial Planning, Apr. 17, 2015.

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

April 24, 2015 in Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0) | TrackBack (0)

Don’t Wait Until The Last Moment To Write Last Words

WillsMost people do not like to think about their own mortality particularly those that are young with families and, as a result, refrain from making a will. However, a little forethought can be a saving grace if the unexpected occurs as a will can prevent much legal wrangling during probate. Any client should be made aware of the benefits of testate succession and guided through available options based on their personal circumstances. Also explain that death planning is a naturally prudent choice and can alleviate long term anxiety about the welfare of loved ones.

See Jeff Woodburn, Don't Put Off Writing Down Your Last Words, New Hampshire Magazine, May 2015.

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

April 24, 2015 in Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0) | TrackBack (0)

Tips to Protect Finances When End of Life Planning

HospiceAs more Baby Boomers reach retirement, a plan to protect financial assets for late in life is becoming increasingly important. Here are some key issues to go over when making end of life preparations:

  • Make sure that your spouse knows all the details of your financial situation including debts and assets.
  • State your funerary wishes now so cost can be determined and money set aside.
  • Create a will with an attorney and keep it up to date in regards to assets and beneficiaries
  • Know all Social Security benefits for both spouses.
  • Always have a separate cash reserve based on your personal circumstances and anticipated expenses.

See Sharon Brandys, End of Life Planning: Five Tips to Protect Your Finances, Yahoo Finance, Apr. 21, 2015.

 

April 24, 2015 in Death Event Planning, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, April 23, 2015

Incapacity Planning

Healthcare proxySome of the lesser-known benefits of a well-crafted estate plan are the provisions providing for both management of assets and instructions for personal care in the event of incapacity.  Estate planning documents that anticipate incapacity enable named representatives to manage an individual’s assets, and direct how health care decisions will be made.  Without these documents, family members may have to petition a court to attain power to manage the assets or make health care decisions for one who is incapacitated. 

The first document necessary in planning for incapacity is the durable power of attorney.  This document survives incapacity and gives a designee the authority to act on one’s behalf with regard to financial affairs.  The durable power of attorney is valid once the testator signs it, so selection of designee is imperative.  The next set of documents concerns heath care; and includes a health care proxy, living will and HIPAA authorization.  A health care proxy will give a designee the power to make health care decisions on one’s behalf.  A living will or advance directive can provide directions to caregivers and loved ones with regard to care or end-of-life matters.  A HIPAA authorization allows doctors to disclose important health information to caregivers. 

See Planning for Incapacity re: Estate Planning, The National Law Review, Apr. 23, 2015.

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

April 23, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

UNM Indian Estate Planning Clinic

Indian clinic

The University of New Mexico Law School is holding its first-ever Indian Estate Planning Clinic on Saturday, April 25 from 10:00 am until 3:00 pm at the UNM Law School.  Attendance is limited, pre-registration is required and walk-ins are not allowed.  Provided below is more information regarding the clinic:

State judges, attorneys and State bar staff have come together at the request of SILC to be trained in the law and to provide this free service of drafting wills for Native Americans.  Services are being provided because the American Indian Probate Reform Act, a federal law that provides specific requirements for federal Indian trust property, requires expertise in Indian law and estate planning in order to competently serve the Native American client in many situations.

April 23, 2015 in Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 22, 2015

Article on Wills, Trusts, Guardianships and Fiduciary Administration

Mary RadfordMary F. Radford (Marjorie Fine Knowles Professor of Law, Georgia State University College of Law) recently published an article entitled, Wills, Trusts, Guardianships and Fiduciary Administration, 66 Mercer L. Rev. 231-245 (2014).  Provided below is the article’s introduction.

This Article describes selected cases and significant legislation from the period of June 1, 2010 through May 31, 2011 that pertain to Georgia fiduciary law and estate planning.

April 22, 2015 in Articles, Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 21, 2015

Taking Care of Your Digital Legacy

Computer 2Many Americans have yet to decide who will oversee their digital accounts after they die.  While some prefer their accounts be memorialized, more than half would like them deleted.

Several social networking capabilities now make it easier to manage someone’s online presence after death.  In February, Facebook released a “legacy contact” feature, allowing users to designate another user to post a final message, change profile pictures and accept new friend requests.  Google began offering a similar service in 2013. 

These options are steps that have given users more control over their digital life, a trend attorneys hope other companies to follow.  But instead of waiting for accounts to offer digital legacy handlers, people can name “digital executors” in their will.  Yet, in one poll taken, 70 percent of individuals had not chosen a digital executor.  Many people assume that they did not need one or that their family could access their accounts upon death.  It is important to name successors on any account to make the process easier when trying to communicate your authority to the right person. 

See Ellen Huet, Who Will Take Care of Your Digital Legacy After You Die? Poll Says Many People Haven’t Specified, Forbes, Apr. 21, 2015.

April 21, 2015 in Estate Administration, Estate Planning - Generally, Web/Tech, Wills | Permalink | Comments (0) | TrackBack (0)

Princess Diana's Will Available Online

Princess dianaThe Will of Princess Diana is now available online as part of a vast archive of wills dating back to 1858.  “Qadir Ahmed runs the secure Iron Mountain facility in a leafy suburb of Birmingham where row upon row of the documents are kept in temperature-controlled storage, under tight security.”  The new system means that people no longer have to order wills by post or at their local registry office.  The wills of other famous individuals including Winston Churchill and George Orwell are also included in this expansive archive. 

See Will from Princess Diana That Explained How She Wanted Her £21.4m Estate Distributed Now Available Online With 41 Million Others, Daily Mail, April 19, 2015. 

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

April 21, 2015 in Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)