Wills, Trusts & Estates Prof Blog

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

Tuesday, January 16, 2018

Article on Honoring Probable Intent in Intestacy: An Empirical Assessment of the Default Rules and the Modern Family

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-01-16/7f0a999c-b514-4b26-a954-8f537fa0f20b.pngDanaya C. Wright & Beth Sterner recently published an Article entitled, Honoring Probable Intent in Intestacy: An Empirical Assessment of the Default Rules and the Modern Family, 42 ACTEC Law Journal 341 (2017). Provided below is an abstract of the Article:

This article provides preliminary analysis of an empirical study of nearly 500 wills probated in Alachua and Escambia Counties in the State of Florida in 2013. The particular focus of the study is to determine if there are noticeable patterns of property distribution preferences among decedents based on their diverse family relationships. Earlier empirical studies of distribution preferences indicated that a majority of married decedents wanted to give all or most of their estates to their surviving spouses. As a result of these studies, most states amended their probate codes to give surviving spouses a sizable percentage of a decedent spouse's estate under their intestacy provisions. But with the explosive growth of nontraditional families, particularly blended families with stepchildren, the standard estate plan for these nontraditional decedents is actually a revocable trust with a QTIP provision to provide for the surviving second or third spouse, thus protecting a significant portion of the property for the children by a prior marriage. As family patterns have changed and the blended family has become more ubiquitous, there is a growing divergence between the estate plans of those who can afford to make them, and the default rules of intestacy. 

In this article, we report our initial findings in a comprehensive study of testate estates through the lens of family relationship patterns. Focusing on distributions to second or subsequent spouses, and bequests to stepchildren, we show that intestacy laws still tend to fit most decedents' preferences regarding bequests to surviving spouses, though certainly the fit is less close than with first spouses, but that there is a significant gap in the intestacy law's treatment of step-children. Moreover, these are definite gender-based differences in treatment of surviving second-spouses that suggest our intestacy laws are not providing as close a fit as they could. 

 

January 16, 2018 in Articles, Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Visiting North Korea? Draft a Will and Make Funeral Plans, State Department Says

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-01-16/ea4b48f4-c4d6-44cb-b681-ccfd4cd8860d.pngThe U.S. State Department warned Americans traveling to North Korea that such a trip might be a death wish. The State Department published an announcement on its website cautioning potential travelers to the Hermit Kingdom with notice that the “U.S. government is unable to provide emergency services to U.S. citizens in North Korea as it does not have diplomatic or consular relations with North Korea.” The few approved U.S. visitors to North Korea are urged to draft a will and make property and funeral arrangements with friends and family: “Draft a will and designate appropriate insurance beneficiaries and/or power of attorney; discuss a plan with loved ones regarding care/custody of children, pets, property, belongings, non-liquid assets (collections, artwork, etc.), funeral wishes, etc.”

See Katherine Lam, Visiting North Korea? Draft a Will and Make Funeral Plans, State Department Says, Fox News, January 15, 2018.

January 16, 2018 in Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Sunday, January 14, 2018

Disinheritance vs. Forced Heirship

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-01-13/27624fc4-0d70-4413-b37c-ba79a014272f.pngThe American system of inheritance allows individuals to exercise a relatively unfettered freedom to choose their beneficiaries, whether it be their immediate family, charity, or really anyone they see fit. The French system of inheritance does not allow testators a similar free reign, as they operate under a system of forced heirship as a means to protect future heirs. The practice of forced heirship has potential negative consequences for society and can perpetuate economic disparity. Though traditional family values molded the forced heirship inheritance system, a modern world demands greater freedom for testators to leave a legacy beneficial to those outside their immediate family.

See Elaine Lam, Disinheritance vs. Forced Heirship, Probate and Property Magazine, January 2018.

January 14, 2018 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, January 11, 2018

Don’t Let Divorce Distract You from Important Estate Planning Considerations

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-01-11/ae69a4d2-895f-4e63-8e7a-d7046274a7f9.pngNearly half of all marriages in the United States end in divorce. The divorce rate for second marriages and beyond is even higher. Though estate planning is rarely a priority after a divorce, it is important to understand state laws regarding wills. In most states, an ex-spouse is prohibited from receiving assets as a beneficiary of a will drafted prior to divorce. In the event of a remarriage, there are three important steps you might consider to ensure your estate is handled according to your wishes: 1) rewrite or revoke your will, 2) update all beneficiaries, and 3) update powers of attorney.

See Inna Fershteyn, Esq., Don’t Let Divorce Distract You from Important Estate Planning Considerations, BrooklynTrustandWill, January 6, 2018.
 
Special thanks to Alex Evelson for bringing this article to my attention. 

January 11, 2018 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, January 5, 2018

Giving Your Money Away When You Die: 10 Questions to Ask

'My name is Daniel Nathan Reed. I don't initial anything.'If you have never given much thought to charitable giving and estate planning, there are a few important questions to consider. First, do you have a will? According to a 2016 Gallup poll, fewer than half of Americans have one. Next, can you give away any money now? There are no limits on gifts to charity and gifts to family members do not generate tax repercussions as long as they fall below the annual exclusion threshold. Finally, what do you want to happen in the case of your incapacity? To what extent do you want physicians to go to save your life and is your family aware of your desires? Take the time to codify your preferences in a living will and via a medical power of attorney.

See Jonathan Clements, Giving Your Money Away When You Die: 10 Questions to Ask, MarketWatch, October 29, 2017.

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

January 5, 2018 in Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, January 4, 2018

Ben Franklin’s Will

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-01-04/525497d4-73f0-4dcf-bb7e-12f756b2d54e.pngClients tend to ask a number of common questions when seeking advice about their estate plan. They are often worried about who should receive their property, giving property to children outright or via trust, forgiving loans, the possible death of children, pets, etc. Benjamin Franklin addressed a number of these frequent concerns in his will and an examination of this historical document provides great guidance in response to many of these questions.

See Sam A. Moak, Ben Franklin’s Will, The Item, October 1, 2017.

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

January 4, 2018 in Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Friday, December 29, 2017

Strife After Death

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-28/1a979871-b8f8-4960-b4d8-3ea921ae2ec7.pngOnly one in every ten wills is ever contested. But, these odds increase dramatically when the decedent’s estate contains significant wealth. When high-net-worth individuals are laid to rest, friends and family begin to discover the inherent unfairness in the decedent’s final disposition of assets. In some cases, legal battles and fighting can tear families apart while the estate lawyers reap the benefit of the discord.

Baseball legend Ted Williams is an unfortunate paradigm of such post-mortem bickering. His will provided for his remains to be cremated and then scattered in the Florida Keys. His son and daughter from his third marriage presented the court with a signed note saying that their father wanted to be frozen in case scientific progress might someday bring him back to life. As of today, Williams’s severed head and body await reanimation in Arizona.

See Ian T. Shearn, Strife After Death, Financial Advisor, December 15, 2017.

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

December 29, 2017 in Death Event Planning, Estate Planning - Generally, Science, Technology, Trusts, Wills | Permalink | Comments (0)

Sunday, December 24, 2017

Las Vegas Gunman Stephen Paddock’s $5 Million Estate to Be Settled in Court, Judge Says

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-23/49805911-d62c-43f4-a40c-afe40f546060.pngStephen Paddock, the Las Vegas massacre gunman, died with an estate worth over $5 million. Lawyers for victims appeared in court on Thursday as part of an effort to decide how the estate is to be distributed. Judge Gloria Sturman asked victim’s attorneys for help in determining the best method to regulate potential claims against the property. She is reportedly concerned that the sheer volume of claims against Paddock’s estate will result in more fees paid to attorneys than paid to victims.

See Elizabeth Zwirz, Las Vegas Gunman Stephen Paddock’s $5 Million Estate to Be Settled in Court, Judge Says, Fox News, December 14, 2017.

December 24, 2017 in Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, December 22, 2017

Article on Using the Marital Deduction in Settlements

 '... and they got a divorce and, due to a good prenup, they lived happily ever after.'Brett Bueltel, Margaret Ryznar, & Jamie Seitz recently posted an Article entitled, Using the Marital Deduction in Settlements, Wills, Trusts, & Estates Law eJournal (2017). Provided below is an abstract of the Article:

This article considers a common scenario in which a surviving spouse challenges a prenuptial agreement that granted each spouse a life estate at the other’s death, and whether the resulting settlement payment by the estate can qualify for the marital deduction when structured as a statutory election. Section 2056(c) explicitly allows the marital deduction for the elective share, but the result may be the same even if the Will Contest Regulation applies. Thus, a prenuptial agreement does not necessarily prevent the marital deduction if the surviving spouse challenges the prenuptial agreement and attempts to exercise statutory rights, facilitating settlement.

 

December 22, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, December 12, 2017

David Cassidy’s Estate Is Sued for $102,000 by Law Firm for Five Years of Unpaid Legal Bills – Putting $150,000 Worth of Assets in Peril

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-12/1352dabd-4c69-4e6a-b81e-bf359e3a516f.pngDavid Cassidy passed away with an estate estimated to be worth about $150,000. Very intentionally excluding his daughter from the will, he left everything to his only son, Beau. Now Cassidy’s former lawyers are suing the estate for $102,000, which represents the remaining balance of over $134,000 in legal fees. Though Cassidy listed the law firm as a creditor when he filed for bankruptcy in 2015, the debt was not discharged.

See Matthew Wright, David Cassidy’s Estate Is Sued for $102,000 by Law Firm for Five Years of Unpaid Legal Bills – Putting $150,000 Worth of Assets in Peril, DailyMail.com, December 9, 2017.

December 12, 2017 in Current Events, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)