Wills, Trusts & Estates Prof Blog

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

Thursday, September 15, 2016

Holocaust Heroine's Will Uncovered in Scotland

Jane hainingA Holocaust heroine’s last will and testament has been uncovered in a Scotland church’s archives. Jane Haining died in Auschwitz in 1944, and her will along with some unpublished photographs offer a new glimpse into her life. Haining was a Chrisitan missionary who provided a safe haven to Jewish girls. She was able to keep the girls safe for four years before being arrested by Gestapo officers. Her will detailed who was to receive her typewriter, fur coat, and watches. These unearthed belongings will soon be given to the National Library of Scotland in remembrance of a true hero.

See James Rogers, Holocaust Heroine’s Will, Lost Photos Unearthed in Scotland, Fox News, September 14, 2016.

September 15, 2016 in Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, September 14, 2016

When Inheritances Pass Outside the Family

Nonblood heirA non-blood related beneficiary can increase the possibility of lawsuits. One of the biggest concerns when naming an individual who is not a natural heir is elder abuse and protection. Because elder financial exploitation is on the rise, it is important to ensure protection of that elder beneficiary through specified provisions. Additionally, you should have an expert determine the capacity of the testator. This will decrease the possibility of will contests if heirs are aware of the testator’s capacity at the time of will execution. We each have rights to distribute wealth in accordance with our wishes, so it is important to properly plan for your estate in these ways.

 See What Issues Are Raised When an Inheritance Passes Outside the Family?, Wealth Management, September 7, 2016.

September 14, 2016 in Elder Law, Estate Planning - Generally, Wills | Permalink | Comments (0)

How to Keep Your Assets Private

PrivaterecordsThe most recent update on Prince’s estate allows the administrator to sell all six of late musician’s properties; however, this order does not protect the personal components of his life. Like Prince, when you die without a will your court filings are made public in probate court. There are several reasons why you might want this knowledge to be kept secret from the public. Particularly, heirs can be approached by scammers or targeted by criminals. Additionally, public records can invite will contests from unhappy family members. To avoid probate, you should consider probate alternatives, like revocable trusts and beneficiary designations.

 See Ettinger Law Firm, Keeping Your Life and Assets Private, New York Estate Planning Attorney Blog, September 14, 2016.

September 14, 2016 in Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Monday, September 12, 2016

Your Response to Will or Trust Litigation

WitnessIn response to will or trust litigation, judges may read your response prior to the hearing and comment on some of the facts involved, potentially affecting the preliminary rulings by the court. Sometimes, however, the judge never reviews the response, and the case will progress to trial. In preparation for your response, you should be prepared to give enough detail to help but not too much detail, especially if the facts are subject to change as discovery is conducted. This can make favorable facts harder to prove if there is no document or witness to support the presumed fact. It is important, however, not to lie in your response, but you may not know the answer to every obscure question. Ultimately, your response should be short and to the point.

See California Trust and Probate Litigation, Not Too Much . . . And Not Too Few: Reciting the Facts of a Trust or Will Lawsuit, Wealth Management, September 8, 2016.

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

September 12, 2016 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Saturday, September 10, 2016

Article on How Courts Applied the Clear & Convincing Standard to Will Law Reforms

Clear and convincingJane B. Baron recently published an Article entitled, Irresolute Testators, Clear and Convincing Wills Law, 73 Wash. & Lee L. Rev. 3 (2016). Provided below is an abstract of the Article:

Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator's death. To respond to this concern, both the error and the testator's true intent must be established by “clear and convincing” evidence.

This Article is the first to examine how courts have applied the clear and convincing evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom.

The reforms assume--as does the Wills Act itself--a fully formed, fixed set of choices that the testator has sought to express in his will, choices made by a conventionally rational choosing testamentary self for whom wills rules further self-determined ends. This conventionally rational testator makes only innocent, inconsequential errors. Many of the testators in the actual cases, however, display only bounded rationality. Their errors are not simple accidental snafus. While the reforms contemplate correction only of the technical, innocuous expression or execution errors made by self-reliant, choosing testamentary selves, at least some courts care also about the more complicated errors made by vulnerable, irresolute testamentary selves. These courts push against the reforms' boundaries. The clear and convincing evidence standard has not and will not function as a serious limit on mistake correction because it fails to reckon with both visions of testamentary freedom.

September 10, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, September 9, 2016

Plan for Bequest Goals

Bequest goalAny client can fail to achieve their legacy goals, which often results from the risks associated with longevity. As recommended, all clients should have a bequest goal in their retirement planning even if that means they want to leave nothing behind. Bequest goals can come in many forms, including money, real estate, equity shares, or heirlooms. Some of these bequests can appreciate throughout time, generating recurring income. Poor financial planning can lead to clients not being able to fulfill their intended bequest goals. It is not ideal, however, for a bequest to cause disappointment or unjust enrichment, so plan ahead.

See Bruno Caron & Colin Devine, Bequest Goals: More Than Just an Issue for the Wealthy, LifeHealthPro, August 9, 2016.

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

September 9, 2016 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, September 7, 2016

How Divorce Affects Inheritance

Inheritance and divorceWe often hear about divorce rates and high-profile divorce battles; however, little is ever mentioned about various other financial aspects of divorce, such as inheritance. Formal estate planning assists those who wish to make inheritances, but without it, inheritance laws generally follow bloodlines, which may not reflect the needs and values of modern families. Specifically, studies show that divorce might not necessarily break kin ties with feelings of obligations to provide further inheritance or care. Using wills or trusts can provide straightforward ways to transfer wealth, allowing people to make specific inheritances even in the event of divorce.

See Naomi Cahn & Amy Zeittlow, Inheritance and Divorce, Family Studies, September 6, 2016.

September 7, 2016 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Monday, September 5, 2016

Drake University Law School Seeks Wills & Trusts or Tax Professor

Drake law schoolDrake University Law School invites applications from entry level and lateral candidates for a tenure-track or tenured position beginning in the 2017-18 academic year.  We are especially interested in candidates with demonstrated interest or experience in Wills and Trusts or Taxation. Qualifications include: a record of academic excellence, substantial academic or practice experience, and a passion for teaching. Appointment rank will be determined commensurate with the candidate’s qualifications and experience.

Drake University Law School sustains a vibrant intellectual culture, and Des Moines has been recognized as the Best U.S. City for Business (MarketWatch), the Best Place for Young Professionals (Forbes), and as the city with the Highest Median Income (US News/The Today Show). The Law School features innovative and nationally-recognized programs in agricultural law, constitutional law, intellectual property, and practical training. Our location in Iowa’s capital city also offers opportunities to participate in the synergy of law and politics. 

Drake is an equal opportunity employer dedicated to workforce diversity. We strongly encourage women, people of color, and others who would enrich the diversity of our academic community to apply. For more information on the law school and its programs, see www.drake.edu/law. Interested candidates should send a letter of interest, a CV, and a list of references to Professor Andrew Jurs, Chair, Faculty Appointments Committee, Drake Law School, 2507 University Ave., Des Moines, IA 50311 or submit by email to andrew.jurs@drake.edu.

September 5, 2016 in Estate Planning - Generally, Faculty Positions -- Permanent, Income Tax, Trusts, Wills | Permalink | Comments (0)

Sunday, September 4, 2016

Inheritance Now or Later?

Inheritance nowYou should consider the benefits of passing on an inheritance while living versus in your will. During life, our families often experience times where extra money would be beneficial to fulfill certain needs. This creates somewhat of a demand for an inheritance to be passed on now instead of waiting to pass your legacy in a will. Studies show that individuals over the age of 50 prefer to give money during life, so they can enjoy helping their children reach their goals.

Ultimately, however, you must determine if transferring wealth while alive is the right decision for you. First, you must consider which family members are in need of the money now and which can wait. Also, you must understand the consequences of a gift’s burdens, and whether you are over-giving, so that later on you are not the one that needs help. Finally, with the timing of your generosity, it is important to understand any tax consequences.

See Why Make Your Heirs Wait?, Merrill Lynch.

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

September 4, 2016 in Estate Planning - Generally, Gift Tax, Trusts, Wills | Permalink | Comments (0)

Saturday, September 3, 2016

Rockefeller University Wins Legal Battle Over Will Restrictions

Rockefeller universityRockefeller University petitioned the court to release restrictions set forth in a will that bequeathed generous institutional funds to the university, arguing that the restrictions became impracticable, wasteful, and an impediment to the prudent management and investment of the proceeds of the bequest. The Attorney General expressly concurred with the university's position that the release of the restrictions would further the testamentary intent of the donor. The donor estate did not oppose the petition. The court granted the petition, releasing the university from the obligation to comply with the sale and investment restrictions of the will.

See In re Rockefeller University, Supreme Court, New York County, August 15, 2016.

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

September 3, 2016 in Current Events, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)