Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Wednesday, January 28, 2015

Lawsuit Arises Over Inheritance Dispute


On October 15th last year, Theresa Hartley, agent for Thomas Lee Thibodeaux, filed a lawsuit in Jefferson County District Court against Melissa Campbell.  According to the complaint, Thibodeaux was married to Nina LaPierre when she passed away on September 11, 2001, leaving a holographic will that gave him two houses and a life estate in a Sour Lake property, making him and Campbell co-independent administrators of her estate. 

The complaint states Campbell refused to take the steps to convey the properties to Thibodeaux and demanded he pay her $450,00, which Thibodeaux, 84, did in confusion.  Campbell is accused of breach of fiduciary duty, fraud, violating the theft liability act, unjust enrichment, and tortious interference with inheritance rights.  Moreover, the complaint alleges that Thibodeaux lacked capacity to enter into such a transaction.  

See Annie Cosby, Inheritance Dispute Leads to Lawsuit, The Southeast Texas Record, Jan. 27, 2015.

January 28, 2015 in Estate Administration, Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

Avoiding Financial Ruin The Second Time Around

Divorce 2

While love may be lovelier the second time around, it may be much more complicated if it does not last.  Second marriages already struggle, as they have a divorce rate exceeding 60 percent.  Most of these divorces will not result in the $974 million payout that Texas oil tycoon Harold Hamm gave to his ex, but all second marriages require special planning.  Below are a few things to consider:

  • Prenuptial Agreements.  Sorting out the legal and financial issues ahead of time can prevent soaring costs later.  Prenuptial agreements are also being used to address issues within the marriage such as spending priorities.
  • Postnuptial Agreements.  Even if you did not do a prenup, married couples can opt for a postnup.  This often deals with housekeeping issues and lifestyle disputes.  These agreements are useful in times of marital crisis.  Monetary penalties for indiscretions are commonly incorporated into the document.
  • Estate Planning for a Second Marriage.  If the couple escapes divorce, the marriage will end at death.  The competing interests will be one’s adult children and the new spouse.  One solution is to grant the surviving spouse a “right of occupancy” in the house, which can be done with a will or trust and gives the survivor the right to reside in the home until the earlier of her death, departure, or a fixed number of years. 

See Ann-Margaret Carrozza, How to Avoid Financial Pain If Your Second Marriage Fails, New York Daily News, Jan. 26, 2015.

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

January 27, 2015 in Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2015

Approaching Issues of Capacity

Writing 2

While capacity can be an issue at any age, it is statistically most common among the elderly.  Many people decline in mental and physical ability as they age and capacity becomes a concern.  However, it is a well-known pillar of capacity law that practitioners cannot assume that capacity is an issue.  It is the professional’s responsibility to probe and verify in order to confirm or dispel any concerns surrounding an assessment of capacity. 

An advisable way to approach extracting issues of capacity with an elderly individual is through delicate conversation and encouraging openness.  Though it is important to avoid offending clients who may be uncomfortable, this is a crucial issue to ensure proper estate planning.  Sometimes, apparent symptoms of incapacity can result from cultural differences between client and lawyer.  Other times, apparent cultural issues can mask signs of incapacity.  As a lawyer, information regarding capacity may govern whether or not you can take instructions or act for the person, or whether any will prepared will ultimately be valid. 

See Ian M. Hull, How Lawyers Should Approach Issues of Mental Capacity, The Huffington Post Canada, Jan. 24, 2015.

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

January 26, 2015 in Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Professional Responsibility, Wills | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

DIY Estate Planning Pitfalls

TrustIndividuals tackling the task of estate planning on their own, sometimes realize that their estate or goals are more complicated than DIY estate plans are intended to address. While some simple matters may warrant the use of less expensive DIY methods, more complex estate planning issues create common pitfalls that can cause unintended consequences when relying on a DIY estate plan. One common unintended consequence is an improperly funded trust created by missing additional steps for funding the trust, such as changing the title for real property or also including a pour over will.

See Dennis A. Fordham, Your Legacy and Peace of Mind: The Pitfalls of Do-It-Yourself Estate Planning, Record-Bee, Jan. 20, 2015.

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

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

Thursday, January 22, 2015

Dealing With Domicile

Joan Rivers

When comedian Joan Rivers died last September, a provision in her estate plan named her state of residency as New York, but her domicile as California. 

Though unusual, this was done to take advantage of the tax situation in each state.  New York has a state estate tax, whereas California does not.  Yet Rivers’ will was filed through the New York legal system, her primary residence, and probate usually takes place in the state of domicile. 

Domicile is typically a question of fact based on the individual’s intent to remain in, or return to, a particular state.  Factors indicating domicile are where they vote, in which state their car is registered, the address listed on their tax returns, etc.  Estate planning documents can also state a clear intention of domicile.  Thus, clients who are considering establishing a domicile different from their current one should prepare well in advance. 

There are multiple benefits to establishing domicile in other jurisdictions.  For example, fewer than 20 states have their own estate tax, and the exemption levels tend to run far below the federal exemption of $5.34 million per estate.  While a client can do everything to avoid the federal estate tax, his or her heirs could get stuck with a large estate bill. 

See Tom Nawrocki, State Estate Tax: Dealing With the Domicile Issues, Life Health Pro, Jan. 21, 2015.

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

January 22, 2015 in Estate Administration, Estate Planning - Generally, Estate Tax, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2015

Article on Testamentary Capacity of Minors

Mark Glover

Mark Glover (University of Wyoming College of Law) recently published an article entitled, Rethinking the Testamentary Capacity of Minors, 79 Mo. L. Rev. 69-118 (2014).  Provided below is the article’s abstract from SSRN:

Minors lack the legal capacity to execute wills. Subject to limited exceptions in some states, a will executed by a child is void. Because this testamentary age requirement conflicts with the primary objective of the law of wills, which is to allow decedents to freely choose how their estates will be distributed, this rule should be founded upon a coherent and compelling policy rationale. Nonetheless, it is not.

Three potential rationales might explain the testamentary incapacity of minors. First, the age requirement could represent a categorical capacity threshold that is aimed at protecting children from their immaturity and indiscretion. Second, the age requirement could be seen as a proxy for the minimum mental competency that the law requires of all testators. Finally, the age requirement could implement forced parental inheritance, under which the estates of minors are funneled into intestacy and are distributed to their parents.

This article explains how each of these potential rationales fails to adequately align with the mechanics of the current testamentary age requirement. The article ultimately calls for the elimination of the categorical age restriction on testamentary capacity. It also proposes additional reforms that would better serve the policy objectives of the testamentary age restriction but that would allow children to more frequently execute wills.

January 20, 2015 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, January 18, 2015

Extravagant Inheritance for Pampered Pooch

Bella Mia

A Queens woman loves her 3-year-old Maltese so much that she altered her will to include the dog, who is now set to inherit jewelry, a six-figure trust fund and a million-dollar Florida house.

“We decided that we had given her such a lavish life that we wanted to make sure she’d still have what she was accustomed to when I was gone,” owner Rose Ann Bolasny explained. “Yes, we pamper her, but Bella Mia has really donated and volunteered more than her time in her short 3 years of living that most people have done in a lifetime.”

Mrs. Bolasny’s two sons do not have a problem with their mother giving her dog a hefty inheritance.  “They feel fine, because they’re getting more than Bella Mia.”

See Chris Perez, Pampered Pooch to Inherit 6-Figure Trust Fund, $1M House, The New York Post, Jan. 16, 2015. 

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

January 18, 2015 in Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Article on Marley v. Rawlings


Edward Granger and James Goodwin recently published an article entitled, Where There’s a Will There’s a Way: Marley v. Rawlings and Another, The Modern Law Review, Vol. 78, Issue 1, pp. 140-150 (2015).  Provided below is the abstract from SSRN:

In Marley v Rawlings and another, a unanimous Supreme Court has widened the scope of judicial power to rectify a will under section 20 of the Administration of Justice Act 1982. An intended will that falls foul of formality requirements may now have such defects resolved by rectification, and the meaning of ‘clerical error’ – one of the two possible bases for invoking the rectification doctrine – has been expanded. The Court's decision to resolve the issue by this method rather than by recourse to the doctrine of construction may prove to have implications for the extended scope of the latter. Moreover, the recent award of a third party costs order in this case is also likely to have a significant impact on the manner in which similar disputes are conducted in the future.

January 18, 2015 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Saturday, January 17, 2015

Jane Austen Letter to be Auctioned

Pride_and_PrejudiceA 1799 letter written by author Jane Austen to her sister is currently on public display for the first time at Torquay Museum in Devon. The letter was left to the museum in Hester Pengelly's will in the 1930s along with roughly 3,500 other autographs and letters, but was forgotten and sat in a file box until it was discovered in 1989. The museum is considering auctioning off the letter to raise money for an endowment  fund that is intended to keep the museum open, despite the sale being contrary to the terms of Pengelly's bequest. Austen's letter references an upcoming novel by the author entitled First Impressions, which was later re-titled Pride and Prejudice when it was published 14 years later.

See Stephanie Linning, Previously Unseen Letter by Jane Austen Where She First Writes About Pride and Prejudice Goes on Public Display for the First Time, Daily Mail, Dec. 6, 2014.

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

January 17, 2015 in Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 14, 2015

Trust and Estate Law Program for Paralegals


The ABA Section of Real Property, Trust and Estate Law is continuing the professional development series focused on paralegals, legal assistants, and others working in the areas of Trust & Estate Law, with the program entitled, From Undertaker to Litigator and Steps in Between: The Role of the Paralegal in Estate Administration, Distribution and Resolution.  The program features ten 60-minute webinars beginning January 22, 2015 and ending August 6, 2015.  Here is why you should attend:

Attendees of the Paralegal eLearning Program will learn substantive legal and ethics issues, as well as best practices, from leading industry professionals with in-depth knowledge and hands-on experience in Trust & Estate Law. The program includes ten 60-minute webinar sessions, and attendees can register for the entire series or individual sessions.

As a special offer, those who register for the entire 2015 Paralegal eLearning Program series will receive complimentary Associate membership in both the ABA and the Section of Real Property, Trust & Estate Law (RPTE).

January 14, 2015 in Conferences & CLE, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)