Wills, Trusts & Estates Prof Blog

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

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Monday, October 20, 2014

R&B Singer's Estate Goes to Widow

Pendergrass

Suburban Philadelphia Orphans’ Court Judge Stanley Ott decided that the widow of R&B singer Teddy Pendergrass will retain control over his estate after rejecting a will submitted by the singer’s son.  The judge stated that a will dated in May 2009 and submitted by Theodore “Ted” Pendergrass II was “fraudulent” and called his testimony, “wholly lacking in credibility.” 

Contrastingly, the judge found testimony by the singer’s wife, Joan, and other witnesses “highly” credible and ruled the will dated in March 2009 giving Joan Pendergrass most of the estate will stand.

Pendergrass’ son “respectfully disagrees with the court’s ruling and is considering an appeal.”

See Associated Press, Judge Rules Teddy Pendergrass’ Widow To Retain Control Over Estate, The Huffington Post, Oct. 16, 2014.

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

October 20, 2014 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Mean Wills

Last will and testament

While Shakespeare is known for his literary brilliance, his will was a rather mean document.  In it, he did not refer to his wife by name and all he bequeathed to her was his “second-best bed.” 

What kind of message was he trying to send in his will?  Clearly, a mean one.  This sentiment could have been excluded from Shakespeare’s permanent legacy, as it tarnishes the image of his works.

The idea behind mean wills does not just stop with Shakespeare.  A recent will contained this provision, “If we’re not divorced by the time I die, make sure she gets nothing.  She already gone through all my money.”  When this man died and his will was probated, this paragraph went on the courthouse record and everyone—including his children—could see it. 

What is the point of including these seemingly mean spirited provisions?  Some people are trying to be funny.  For example, “To my nephew John, who made sure I knew he expected to be named in my will: ‘Hello John.’” 

Yet sometimes it goes beyond laughter, and is just hurtful.  “To my daughter, I leave $1.00 for the kindness and love she has never shown me.” 

It is impossible to reconcile a relationship like this after the person has died.  A mean will just leaves bitter thoughts and hurt feelings, which may not be worth it.  Sometimes meanness and sarcasm are best left buried. 

See George, Mean Wills Don’t Ever Mean Well, Fox + Mattson, P.C., Oct. 16, 2014.

October 20, 2014 in Estate Administration, Estate Planning - Generally, Humor, Wills | Permalink | Comments (0) | TrackBack (0)

Saturday, October 18, 2014

National Estate Planning Awareness Week

CLE Photo

October 19 – 25 is National Estate Planning Awareness week and the ABA Section of Real Property, Trust and Estate Law is inviting everyone to get involved.  On Thursday, October 23 at 1 p.m., RPTE will host a free webinar entitled, Estate Planning: How to Get Going and Why Not to Do It Yourself.  Here is why you should attend:

Statistical studies show that 55% of Americans die without a will or estate plan.  This free program informs the non-lawyer public how to start estate planning (wills, powers of attorney and trusts) by providing a set of practical first steps.  Our panel of lawyer and trust officer experts will also explain why simply signing a will or power of attorney with a “do it yourself” plan may actually be worse than doing nothing, costing a “special needs” family member the loss of government benefits or resulting in an ex-spouse inheriting assets. The program is intended for the general public and does not require a background in the law of wills or trusts or tax.

October 18, 2014 in Conferences & CLE, Estate Planning - Generally, Wills | Permalink | Comments (1) | TrackBack (0)

Friday, October 17, 2014

Warring Over Wills

Disputes

Leo Tolstoy once wrote, “Happy families are all alike; every unhappy family is unhappy in its own way.”  Yet when it comes to wills and estates, the woes may echo one another. 

Although these battles are the exception rather than the rule, how do you avoid family warring?  Some experts say there is no “one-size-fits all approach” that will ensure harmony when you die.  “Things like family trusts, putting business assets in different companies and having an up-to-date will are very important because if you don’t do those things you can leave a real mess behind which can be very expensive to sort out and money can go to people who you may not have wanted to benefit.”

If property has been gifted before death, it cannot be the subject of dispute.  Thus, when sizeable assets are at stake, a lot of planning is needed.  A discretionary trust may be an ideal mechanism to facilitate this change if it is set up properly. In establishing a trust, one must anticipate where control of the business will lie, and put that in a letter of wishes.  “This generally isn’t a legally binding document, it’s generally informal … in conjunction with a well structured trust, a letter of wishes can be a very useful thing to guide all those who are involved, including family members.”  This may not be a remedy to keep relatives from going head to head, however, consulting your family and communicating your wishes to them before you die can help forestall any problems. 

See Hamish Fletcher, Families at War: When Wills Go Sour, The New Zealand Herald, Oct. 17, 2014.

October 17, 2014 in Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Widowed Woman Allegedly Defrauded by Doctor

Last will and testament

In a Manhattan civil suit, an esteemed New York doctor is charged with maliciously gaining control of his wealthy widowed patient’s estate.  Helen Spears, the friend of the victim, filed the lawsuit and claims that the physician wrote himself into his patient’s will, stripping her of a multimillion-dollar inheritance. 

Spears contends that the doctor broke the law by doubling as both a primary care doctor and power of attorney.  Spears says that her 102-year-old friend is frail, vulnerable, and is unable to walk on her own, and would consequently want a judge to appoint her a guardian. 

See Alexandra Klausner, Top NYC Doctor Accused of Trying to Take Over Wealthy 102-Year-Old Widowed Patient’s Multimillion-Dollar Estate, Daily Mail, Oct. 16, 2014.

October 17, 2014 in Elder Law, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

New Case: In re Estate of Qualls

Gavel2Gifts violated terms of power of attorney requiring the agent to respect terms of the principal’s will in making gifts.  A power of attorney granted the agent, who was one of three beneficiaries of principal’s will, the authority to make gifts including to the agent but required that any gifts respect the terms of principal’s will.  The agent sold the principal’s home and deposited the proceeds in a payable on death account of which the agent and one of the two other will beneficiaries were the beneficiaries.  After the principal’s death, the third beneficiary of the will began a proceeding to have the sale proceeds returned to the estate.  The beneficiary prevailed and the Missouri intermediate appellate court affirmed, finding that the opening of the payable on death account was the making of a gift even though the principal was the owner of the account and that opening the account exceeded the agent’s authority because doing so dramatically decreased the interest of the third beneficiary of the principal’s will. In re Estate of Qualls, 436 S.W.3d 743 (Mo. Ct. App. 2014).

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

October 15, 2014 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Mississippi Court Rules on No Contest Clause

WillAction brought with probable cause and in good faith did not violate no contest clause. In a case of first impression, the Mississippi Supreme Court held that a no contest clause in a will requiring forfeiture by a beneficiary who contests the admission of the will to probate cannot be enforced against a beneficiary who brings a contest in good faith and with probable cause, even though the clause itself includes language purporting to make it applicable whether or not the beneficiary acts in good faith with probable cause. Parker v. Benoist, No. 2012–CA–02010–SCT, 2014 WL 4243763 (Miss. Aug. 28, 2014).

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

October 14, 2014 in Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, October 13, 2014

Estate Planning for the 30-Somethings

30 somethings

With thirty being the new twenty, the last thing this generation wants to do is plan for their demise.  Yet, financial experts suggest that his could be the best time to protect your family and your assets in case the unexpected occurs.  “It is imperative that those in their 30s have their estate plans in order, because they have as much to lose as their elders—in fact, sometimes more.”  To get started, experts recommend meeting with an attorney to get the following in place:

1. Last Will and Testament. A will establishes who will inherit your assets when you die, along with other vital aspects including information such as who you want to place in charge of administering your estate and who you want to be the guardians of your minor children.

2. Living Will. This outlines your wishes if you are incapacitated or death is imminent.

3. Power of Attorney. This will identify someone who can make financial decisions for you if you are incapacitated.

4. Health Care Proxy. You will specify a person to make medical decisions on your behalf.  “It even may make sense to have a conversation with the person you identify so that they clearly understand what your wishes are—God forbid these circumstances arise.”

5. Life Insurance. Term insurance is an effective way to cover current debts that you do not want to burden your significant other with should something happen to you.

6. Retirement Fund. It is vital that 30-somethings start saving for retirement, especially if their employers offer incentives such as profit-sharing or matching contributions to a 401(k).

See Michael Lerner, 6 Estate Planning Moves You Should Make in Your 30s, Daily Finance, Oct. 10, 2014.

October 13, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Non-Probate Assets, Wills | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

Court Ordered Autopsy May be First Step in Heated Probate Battle

Gavel MotionA family feud has erupted after the death of wealthy 64-year-old Alamo Heights, Texas resident Gail Weir. Weir died Tuesday of brain cancer and a court order Wednesday has postponed cremation of her body so that an autopsy may be performed. The autopsy was requested by Weir's children due to what they describe as suspicious circumstances surrounding her death. Weir was cared for by her brothers leading up to her death. Under the will filed in probate, her estate valued at up to $3 million will be split between her children and brothers with her brothers left the majority of her large estate. However, earlier wills left larger portions to her children. Weirs brothers did not object to the autopsy of Weir's body.

See John MacCormack, Court Battle Begins Over Estate of Wealthy Alamo Heights Woman, My San Antonio, Oct. 8, 2014.

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

October 10, 2014 in Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, October 9, 2014

Article on The Art and Science of Disinheriting Heirs

FamilyRobert L. Moshman recently published an article entitled, The Art and Science of Disinheriting Heirs—Part II: Benign Neglect, Noble Ambitions, The Estate Analyst, September/October 2014. Provided below is the introduction to the article:

There are people who choose to give most or all of their fortune to charity and not to their own family. These are not disinheritances in the classic scenarios of cutting off a family member due to a hostile relationship or a feeble-minded patriarch being unduly influenced by his young nurse/wife.

These disinheritances are based on personal philosophies, ranging from an aversion to creating spoiled “trust fund kids” to a commitment to recycling wealth back to society.

How much money should wealthy parents leave to their children? Are considerations different for the super rich, i.e., when billions of dollars are involved? Here, we consider the examples of recent celebrities, historic estates, and how incentive trusts can be utilized to encourage productivity.

October 9, 2014 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)