Wills, Trusts & Estates Prof Blog

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

Thursday, July 28, 2016

How to Protect Your Assets When Getting Remarried

RemarriedThe biggest estate-planning question when getting remarried is, how do I reconcile preserving assets for my children from a previous marriage while still taking care of my commitment to my new spouse? Usually, heirs fear the new spouse because most all states give rights to a spouse to take some part of the decedent spouse’s estate. An ex-spouse could also still hold they key to certain assets if your estate-planning documents are not up to date before passing. Therefore, consider updating your estate-planning documents, including provisions about your new spouse as executor, the holding of assets individually or jointly, your new spouse on deeds, and specific bequeaths to children from previous marriages. Additionally, there are some common estate-planning mistakes after remarrying that you should avoid, such as no prenuptial, no verbal instructions to loved ones, and no planning for long-term care.

See Deborah Nason, Getting Remarried? Protect Your Assets and Your Interests, CNBC, July 28, 2016.

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

July 28, 2016 in Estate Administration, Estate Planning - Generally, Estate Tax, Trusts, Wills | Permalink | Comments (0)

Tuesday, July 26, 2016

Article on Antemortem Probate

AntemortemKatherine M. Arango recently published a Note entitled, Trial and Heirs: Antemortem Probate for the Changing American Family, 81 Brook. L. Rev. 779 (2016). Provided below is a summary of the Note:

The Pritchett-Dunphy-Tucker family has brought the diversity of today's modern American family center stage and has replaced the Bradys of the 1970s and the Cleavers of the 1950s. The notion of the traditional American family has changed dramatically due to the rise in divorce rates and remarriages, the growing popularity of cohabitating, and the increased acceptance of same-sex couples. Andrew J. Cherlin, a professor of public policy at Johns Hopkins University, acknowledged that “[the] turnover in our intimate partnerships is creating complex families on a scale we've not seen before,” and although families have undergone an enormous change, our society is very much still in the midst of a transformation. But the law of succession has failed to keep pace with the emergent population of nontraditional families.

In light of the American family's changing dynamics, this note first explores how inheritance law could benefit from an antemortem probate statute that would protect a growing population of Americans. It then encourages the drafters of the Uniform Probate Code (UPC) to adopt antemortem probate procedures. Part I of this note considers the American family's changing structure and explains how current inheritance laws do not protect the changing American family. Part II discusses the background of antemortem probate, including its history and the proposed models for an antemortem statute. This part also describes the antemortem statutes currently in effect in five states and the arguments for and against the antemortem measure. Part III proposes implementing an antemortem probate statute that incorporates aspects of current state statutes and the Administrative Model (which proposes that a state implement an ex parte proceeding in which a decisionmaker considers the testator and the testator's particular factual circumstances in *782 order to determine a will's validity). Lastly, Part IV proposes a statute that the drafters of the UPC could adopt.

July 26, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Article on Family Provision Will Contests

Family will contestBen White, Cheryl Tilse, Jill Wilson, Linda S. Rosenman, Kelly Purser, & Sandra Coe recently published an Article entitled, Estate Contestation in Australia: An Empirical Study of a Year of Case Law, 38 U. New S. Wales L.J. (No. 3) (2015). Provided below is an abstract of the Article:

This article reports on a study which reviewed all publicly available succession law judgments in Australia during a 12-month period. The article begins with a brief overview of the relevant Australian law and the method adopted for the case review to provide some context for the analysis that follows. It then shifts to its primary objective: to provide an overview of Australian estate litigation during this period with a particular focus on analysing the family provision contests, which comprised over half the cases in the sample. The article examines how many estates were subject to family provision claims, who were contesting them, and to what extent those challenges were successful. The article also considers variation in estate litigation across Australian states and the impact of estate size on contests. It concludes by identifying the themes that emerged from these judicial cases and outlines their significance for law and practice reform.

July 26, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, July 25, 2016

Article on Principles Underpinning the Intended Distribution of Estates in Australia

Wealth transferCheryl Tilse, Jill Wilson, Ben White, Linda S. Rosenman, & Rachel Feeney recently published an Article entitled, Will-Making Prevalence and Patterns in Australia: Keeping It in the Family, 50(3) Australian J. Social Issues, 319–38 (2015). Provided below is an abstract of the Article:

This article provides evidence of the prevalence of wills and the principles underpinning the intended distribution of estates in Australia. Intentions around wealth transfers and the social norms that underpin them occur in the context of predicted extensive intergenerational transfers from the ageing baby boomer generation, policies of self provision and user pays for care in old age, broader views on what constitutes ‘family’, the increased importance of the not-for-profit sector in the delivery of services, and the related need for philanthropy. A national telephone survey conducted in 2012 with 2,405 respondents aged 18 and over shows that wills are predominantly used to distribute assets to partners and/or equally to immediate descendants. There is little evidence that will makers are recognising a wider group of relationships, obligations and entitlements outside the traditional nuclear family, or that wills are being replaced by other mechanisms of wealth transfer. Only a minority consider bequests to charities as important. These findings reflect current social norms about entitlements to ‘family’ money, a narrow view of what and who constitutes ‘family’, limited obligation for testators to recompense individuals or organisations for care and support provided, and limited commitment to charitable organisations and civil society.

July 25, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Article on How Will Contestation Affects Will Making

Will contestCheryl Tilse, Jill Wilson, Ben White, Linda S. Rosenman, & Rachel Feeney recently published an Article entitled, Having the Last Word? Will Making and Contestation in Australia (2015). Provided below is an abstract of the Article:

Increased longevity and the need to fund living and care expenses across late old age, greater proportions of blended and culturally diverse families and concerns about the increasing possibility of contestation of wills highlight the importance of understanding current will making practices and intentions. Yet, there is no current national data on the prevalence of wills, intended beneficiaries, the principles and practices surrounding will making and the patterns and outcomes of contestation. This project sought to address this gap.

This report summarises the results of a four year program of research examining will making and will contestation in Australia. The project was funded by the Australian Research Council (LP10200891) in conjunction with seven Public Trustee Organisations across Australia. The interdisciplinary research team with expertise in social science, social work, law and social policy are from The University of Queensland, Queensland University of Technology and Victoria University. The project comprised five research studies: a national prevalence survey, a judicial case review, a review of Public Trustee files, an online survey of will drafters and in-depth interviews with key groups of interest.

The report outlines key findings. On the basis of the evidence provided recommendations are presented to support the achievement of these policy goals: increasing will making in the Australian population, ensuring that the wills of those Australians who have taken this step reflect their current situation and intentions, and reducing will contestation.

July 25, 2016 in Articles, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Friday, July 22, 2016

Estate Planning for Your Move to a New State

Moving to a new stateIf you plan on moving to a new state, then you need to consider the new state’s rules governing your estate planning documents and taxes. Before moving to a new state, you should meet with your estate planning attorney to change your wills and trusts according to the new state’s laws. Also, it is important to review the roles of fiduciaries in that particular state because of specific executor requirements.

Furthermore, when moving to a new state, there are also tax implications you must review, and some states have significant variations. For tax purposes, you must be able to prove you abandoned your previous domicile and adopted the new domicile. This is important because, if not, you may still be liable for your old domicile’s income taxes or unexpected estate taxes.

See Day Pitney Estate Planning Update, Estate Planning Update July 2016 – Moving to a New State?, Day Pitney LLP, July 14, 2016.

Special thanks to Jay Stapleton (Quinn & Hary Marketing) for bringing this Article to my attention.

July 22, 2016 in Estate Administration, Estate Planning - Generally, Estate Tax, Income Tax, Trusts, Wills | Permalink | Comments (0)

Wednesday, July 20, 2016

Estate Planning for Mineral Interests

Mineral rightsDealing with mineral interests as part of an estate can be tricky, especially when older interests have not been distributed properly upon death. Late probate of wills can lead to mineral interests not being transferred to the rightful heirs, which creates great problems down the road when oil companies are trying to lease inherited mineral rights. When drafting a will, it is important to specifically identify who is entitled to the proceeds of the mineral estate—the life tenant or remainderman. Oftentimes, testators want the life tenant to enjoy this income, so careful drafting can assure this. 

See Holland & Hart LLP, Seeking Clarity in Distribution of Mineral Interests from Decedent’s Estate, National Law Review, July 20, 2016.

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

July 20, 2016 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Estate Planning for the Rich and the Poor

Estate plan for poorRich or poor an estate plan is an essential, so that your family can mourn your passing in peace. Dying intestate will leave your family sorting through your mess in a time of heightened emotional grief. And it will be up to a probate judge to divide your assets according to the law, which leaves you no control. You can potentially disinherit you wife or children. Additionally, if you do not create a will, the probate process can be very expensive and burdensome.

See Kansas & Missouri Estate Planning Blog, If My Client Isn’t Leaving Millions, Does He Really Need an Estate Plan?, Wealth Management, July 8, 2016.

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

July 20, 2016 in Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Monday, July 18, 2016

Steps to Defending a Will Contest

Will contestA will contest commences when the executor is served with a Verified Complaint, seeking to invalidate the will. Assuming the contest was filed within the statute of limitations, the executor needs to first contact the drafting attorney, who will provide beneficial information on the will’s validity and become an essential witness. Next, the executor will need to file a response to the complaint. After doing so, it will be essential to find any witnesses who can attest to the validity of the testator’s will and any documents relating to asset distribution. Preparing for a will contest can be daunting, but it is the executor’s fiduciary duty to defend the will.

See Stark & Stark, Defending a Will Contest, National Law Review, July 15, 2016.

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

July 18, 2016 in Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Articles on the Wills Law Reforms Affect on Different Types of Testators

Wills lawNaomi Cahn recently published an Article entitled, Incomplete Dispositions, 73 Wash. & Lee L. Rev. Online 259 (2016), in response to an Article by Jane B. Baron, Irresolute Testators, Clear and Convincing Wills Law, 73 Wash. & Lee L. Rev. 3 (2016). Provided below is a summary of the Articles:

Jane Baron first discusses how new wills law reforms are allowing judicial correction of harmless errors in will execution, if both the error and testator’s intent are proven by clear and convincing evidence. Moreover, Baron distinguishes between two different types of testators, whom the reforms will affect, in her Article: the rational, resolute testator and the vulnerable, irresolute testator. Further, she illustrates how these types of testators fair under wills law, considering how courts apply the doctrines of harmless error and mistake reformation. Baron suggests that these doctrines help both types of testators. Additionally, Cahn in her commentary discusses the idea of a beneficiary suing the drafting attorney for malpractice. This addition to Baron’s Article focuses on the doctrine of privity and how it confronts the vulnerable testator.

July 18, 2016 in Articles, Estate Planning - Generally, Malpractice, Wills | Permalink | Comments (0)