Wills, Trusts & Estates Prof Blog

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

Thursday, August 3, 2017

Article on What's Wrong with Partial Intestacy?

HalfRichard F. Storrow recently published an Article entitled, What's Wrong with Partial Intestacy?, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

This article questions whether wills law’s disapproval of partial intestacy rests on defensible assumptions about testamentary intent. After examining the causes of and antidotes to partial intestacy, I make three primary points. First, the presumption against intestacy applies only to wills that contain an ambiguous bequest of the residue. Second, the law’s disapproval of partial intestacy is due in part to its failure to make an important distinction between testamentary intention and dispositive intention. Third, a theory of passive intention, heretofore barely alluded to in the law of wills, supplies the necessary validation of partially intestate estates.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

August 3, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Heir, 23, Accused of Murdering His Millionaire Grandfather, 87 and Sinking the Boat His Mother Was Sailing off Rhode Island Could Still Get $7million Inheritance Despite Relatives’ Legal Fight to Stop Him

42E8099A00000578-4751762-image-a-19_1501688496163Nathan Carman, 23, is set inherit at least $7 million from his deceased mother’s estate. His grandfather, John Chakalos, was a real estate mogul with an estate estimated to be worth over $40 million; the estate was divided evenly among his four daughters in a will. Chakalos was shot to death at his Windsor, Connecticut home in 2013. Carman’s mother recently died in a boating accident in 2016.

Chakalos’ three surviving daughters are accusing Carman of killing both his mother and his grandfather. They point to a rifle Carman purchased prior to Chakalos’s death with a caliber matching the bullets that killed Chakalos as evidence of his guilt. They also claim that Carman intentionally did a subpar job on repairing the boat he and his mother took out when she died. The insurance company that investigated the boating accident said in court that the repairs were “incomplete, improper, and faulty.”  Carman denies involvement in either incident.

See Heir, 23, Accused of Murdering His Millionaire Grandfather, 87 and Sinking the Boat His Mother Was Sailing off Rhode Island Could Still Get $7million Inheritance Despite Relatives’ Legal Fight to Stop Him, Daily Mail.com, August 2, 2017.

August 3, 2017 in Current Events, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, August 1, 2017

CLE on Estate Planning: Top 10 Mistakes to Avoid

0000000 CLEThe National Business Institute is holding a conference entitled, Estate Planning: Top 10 Mistakes to Avoid, which will take place July 31, 2017, via live video webcast. Provided below is a description of the event:

Program Description

Control Chaos and Prevent Pitfalls in Your Clients' Estate Plans

This comprehensive estate planning guide will take you through the key aspects of estate planning and expose common mistakes and hidden pitfalls that can trip up even the most experienced attorney. Whether you're just starting out or are a seasoned estate planning lawyer, this "little shop of estate planning horrors" will help you protect your reputation and your clients' legacies. Register today!

  • Explore the far-reaching consequences of simple will-drafting mistakes.
  • Find out how IRAs are NOT to be handled.
  • Learn how ineffective charitable giving can cost your clients big, and how to avoid it.
  • Zero in on the most egregious mistakes when planning with business entities.
  • Prevent SNTs jeopardizing your clients' benefits.
  • Understand how grantor trusts can be rendered useless.

Who Should Attend

This estate planning guide is designed for attorneys. It will also benefit accountants, trust officers, investment advisers, and paralegals.

Course Content

  1. Health Care Decisions
  2. Costly Will Drafting Mistakes
  3. Improperly Structuring and Recording Gifts
  4. Tax-Inefficient Charitable Giving
  5. Mishandling Pension and IRAs
  6. Irrevocable Life Insurance Trust Oversights
  7. Qualified Personal Residence Trust Mistakes
  8. Business Entities Pitfalls
  9. Supplemental Needs Trusts and Their Alternatives
  10. Misuse of Grantor Trusts

Continuing Education Credit

 

Continuing Legal Education

Credit Hrs State
CLE 6.00 -  AK
CLE 6.00 -  AL
CLE 6.00 -  AR
CLE 6.00 -  AZ
CLE 6.00 -  CA
CLE 7.00 -  CO
CLE 6.00 -  CT
CLE 6.00 -  DE
CLE 7.00 -  FL
CLE 6.00 -  GA
CLE 6.00 -  HI
CLE 6.00 -  IA
CLE 6.00 -  ID
CLE 6.00 -  IL
CLE 6.00 -  IN
CLE 7.00 -  KS
CLE 6.00 -  KY
CLE 6.00 -  LA
CLE 6.00 -  ME
CLE 6.00 -  MN
CLE 7.20 -  MO
CLE 6.00 -  MP
CLE 6.00 -  MS
CLE 6.00 -  MT
CLE 6.00 -  NC*
CLE 6.00 -  ND
CLE 6.00 -  NE
CLE 6.00 -  NH
CLE 7.20 -  NJ
CLE 6.00 -  NM
CLE 6.00 -  NV
CLE 7.00 -  NY
CLE 6.00 -  OH
CLE 7.00 -  OK
CLE 6.00 -  OR
CLE 6.00 -  PA
CLE 7.00 -  RI
CLE 6.00 -  SC
CLE 6.00 -  TN
CLE 6.00 -  TX
CLE 6.00 -  UT
CLE 6.00 -  VA
CLE 6.00 -  VT
CLE 6.00 -  WA
CLE 7.00 -  WI
CLE 7.20 -  WV
CLE 6.00 -  WY

Continuing Professional Education for Accountants

Credit Hrs State
CPE for Accountants 7.00 -  AZ
CPE for Accountants 7.00 -  NY*
CPE for Accountants 7.00 -  WA
CPE for Accountants 7.00 -  WI

* denotes specialty credits

August 1, 2017 in Conferences & CLE, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Monday, July 31, 2017

Be Fair to Your Heirs: Treating Children Fairly in Your Will

Family__Funeral_home__crooks__won_t_turn_0_3022726_ver1.0_640_360When drafting a will, it can be difficult for testators to decide how to distribute their assets fairly. When dividing bequests among beneficiaries, it can be difficult to decide if wealthy, financially independent children should receive the same legacy as children who are not as financially stable. While an uneven division may seem fair when drafting the will, lopsided distributions of assets may prove problematic over time, as previously wealthy children undergo divorce, job loss, or financial strain and financially unsuccessful children enjoy a reversal in fortune.

Even substantially equivalent distributions may not be totally fair. Consider three children: twenty-four, twenty, and sixteen. If a parent were to pass away leaving each child $250,000, the two older children may benefit substantially more than their younger counterpart. It is likely that the two older children had a portion of their education expenses paid from their parent’s estate. The youngest child misses this opportunity and now bears the burden of paying for his entire education without the benefit of parental support.

While there are a legion of considerations to be mulled over when drafting a will, for the sake of harmony, it is usually better to treat children as equally as possible.

See Kevin Duncan, Be Fair to Your Heirs: Treating Children Fairly in Your Will, Trust and Estate Planning, April, 14, 2017.

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

July 31, 2017 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Sunday, July 30, 2017

Article on Partial Harmless Error for Wills: Evidence from California

David Horton recently published an Article entitled, Partial Harmless Error for Wills: Evidence from California, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

In many legal systems, the Wills Act requires testators to memorialize their wishes in a signed and witnessed writing. For centuries, courts insisted on strict compliance with these fussy statutory requirements. But in 1975, South Australia adopted the harmless error rule, which permits judges to forgive execution defects if there is compelling evidence that a decedent intended a document to be effective. Although several countries have now embraced this powerful curative doctrine, most American states have not. This root of this resistance is fear that replacing the clean lines of traditional law with a muddy standard will breed litigation.

This invited contribution to the Iowa Law Review’s Wealth Transfer Law in Comparative and International Perspective Symposium updates our understanding of the harmless error rule by offering the first study of its impact on the day-to-day operations of a U.S. probate court. Its centerpiece is a dataset of 2,453 estates that came on calendar in Alameda County, California between 2008 and 2010. The Golden State adopted what I call “partial” harmless error — a statute that can cure some deviations from the Wills Act but not others — in 2009. Thus, my research offers new insight into the costs and benefits of relaxing the formalities that govern the execution of wills. My marquee finding is that partial harmless error’s impact on the litigation rate was minimal. In addition, I show that by retaining certain statutory elements as mandatory, partial harmless error prevents migraine-inducing dilemmas about whether a decedent wanted an instrument to be her will.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 30, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Article on Estate Planning Highlights of the 2017 Texas Legislature

BarnGerry W. Beyer recently published an Article entitled, Estate Planning Highlights of the 2017 Texas Legislature, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

This article reviews the highlights of the legislation enacted by the 2017 Texas Legislature relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 30, 2017 in Articles, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Friday, July 28, 2017

Article on Distributive Justice and Donative Intent

GarrowIntimidating3Alexander A. Boni-Saenz recently published an Article entitled, Distributive Justice and Donative Intent, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 28, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, July 27, 2017

They're Engaged!...Top 5 Financial Considerations Before the Wedding

WeddingWhen children or grandchildren are engaged to be married, financial and estate planning are rarely top priorities. Planning for the big day requires copious amounts of time and a dedication to minute details, but this narrow focus ignores important, long-term matters. As a loving parent or grandparent, this can be an opportune time to help children or grandchildren prepare for the realities of marriage.

While certainly not a romantic conversation or notion, having a premarital agreement in place before the wedding is usually in the best interest of both parties. This is especially true if one partner is expecting a significant inheritance or gift after marriage. If a prenuptial agreement is not possible, consider pushing for a full financial disclosure. If both parties are fully aware of each other’s assets and liabilities, it may help avoid future financial frustrations.

As the parent or grandparent of the couple, review your own estate planning documents. If you are currently making outright gifts to a currently unwed child, it may be prudent to start providing these funds through a trust before marriage. Finally, encourage the couple to budget. If possible, use the wedding planning as a springboard for teaching and encouraging wise financial practices.

See They're Engaged!...Top 5 Financial Considerations Before the Wedding, Glenmede, June 23, 2017.

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

July 27, 2017 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Top 5 Things to Remember If You’re the Executor

History-execution-executioners-executed-attorney-solicitor-rde5615_lowWhen a loved one passes away, there is no convenient checklist of duties provided to the bereaved detailing all the responsibilities that must be checked off the list. This is especially true for an executor of an estate. Fortunately, there is a relatively short list of tasks involved and a multitude of resources available for reference.

If named as an executor of an estate, the first step in fulfilling your duties is to retain the aid of a professional. Being an executor usually entails legal and financial liability. Having an attorney or planner on your side can significantly reduce the burden of the position. The next critical step for the executor is to make your position and the probate process official by producing the death certificate. It may be beneficial to have numerous copies of this document on hand, as the death certificate will be needed in multiple stages of the administration.

Third, cast a wide net. Part of an executors job is to find things: the will, insurance policies, bills, etc. Do not rush through this as overlooking what seems a small piece of information may be a cause of consternation in the future. Next, tell people you are the executor in order to keep communication lines open with all known and potential beneficiaries. In some states, this is actually a legal requirement. Finally, when dealing with taxes, enlist help. Not only are tax laws complicated, failing to file returns or intelligently handle tax liabilities may result in personal accountability to the estate.

 See Top 5 Things to Remember If You’re the Executor, Glenmede, March 17, 2017.

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

July 27, 2017 in Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, July 26, 2017

Article on The Elective Share Has No Friends: Creditors Trump Spouse in the Battle Over the Revocable Trust

161027_ff_cuttingoffkidsAngela M. Vallario recently published an Article entitled, The Elective Share Has No Friends: Creditors Trump Spouse in the Battle Over the Revocable Trust, Wills, Trusts, & Estate Law eJournal (2016). Provided below is an abstract of the Article:

A revocable trust is a popular estate planning tool used to disinherit a spouse in fifteen jurisdictions. In common law jurisdictions a surviving spouse, who is dissatisfied with his or her inheritance, has the right to receive an elective share of the decedent’s estate regardless of the decedent’s estate plan. However, fifteen jurisdictions have defined a dissatisfied spouse’s rights with a fractional share of the deceased spouse’s “net probate estate,” allowing one spouse to disinherit the other, by single-handedly transferring his or her assets to a revocable trust. To add insult to injury seven of these common law jurisdictions have recently codified trust law making it seamless for the decedent’s creditor to be paid from revocable trust assets.

The elective share is one of few limitations imposed on testamentary freedom. Common law property jurisdictions have created a public policy-based statute for married persons that prohibit the first-to-die spouse from disinheriting his or her surviving spouse. To avoid disinheritance, common law jurisdictions statutorily protect a surviving spouse (“spouse”) with an elective share. The elective share arose in the early twentieth century as a replacement of dower and curtesy rights. At that time the nature of wealth shifting from real to personal made dower and curtesy obsolete. The elective share protected the spouse from disinheritance by guaranteeing him or her with a fractional share of the deceased spouse’s net probate estate, a method known as the traditional elective share. However, like the shift from real to personal property there has been a subsequent shift in wealth from probate to non-probate assets (like revocable trusts) making the traditional elective share equally obsolete and inadequate to protect a spouse from disinheritance.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 26, 2017 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)