Wills, Trusts & Estates Prof Blog

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

Friday, November 18, 2005

Anna Nicole Smith Video

Earlier on this blog, I reported that the United States Supreme Court granted cert in Marshall v. Marshall, 04-1544, to determine when federal courts may hear claims that are also involved in state probate proceedings.

A recently released video tape shows Anna and her husband, Howard Marshall, in a variety of settings including one in which he states the property he wishes Anna to receive upon his death.

Follow this link to watch an ABC News report which includes excerpts from this video.

Special thanks to David S. Luber for bringing this report to my attention.

November 18, 2005 in Current Events, Estate Administration | Permalink | Comments (0) | TrackBack (0)

Rosa Parks' Estate Settlement Possible

Earlier on this blog, I reported on the looming litigation surrounding the estate of Rosa Parks.

Recent reports reflect a significant desire by the parties to settle and to avoid litigation.

According to Ronald J. Hansen, Parks' kin hope to settle estate, detnews.com, Nov. 17, 2005:

Rosa Parks' nephew is seeking an out-of-court settlement with her apparent estate representatives in an effort to head off a legal battle that would likely probe the mental decline of the civil rights legend and her relationship with her closest companion.

Darren Findling, the attorney for William McCauley of Detroit, said Wednesday he is hopeful all sides may reach an agreement before a scheduled Dec. 14 hearing in Wayne County Probate Court to determine who should oversee Parks' estate matters.

"We hope to resolve this dispute amicably," he said. "The family is not interested in making a media story out of this." * * *

By design, her will sheds little light on Parks' affairs. Known as a "pour-over will," it mainly designates Steele and Shakoor as her representatives with instructions to direct her assets according to the living trust, which may never become public unless there is a legal battle.

Kaigler said negotiations are permitted to avoid such lawsuits, but so far, no changes to Parks' living trust have been discussed. Findling said he had seen portions of the living trust, but declined to say what exactly McCauley or other family members want. Foremost, he said, McCauley wants to ensure that Parks' memory is respected.

By law, Parks' relatives could stand to lose whatever she intended for them if they unsuccessfully challenged her living trust. That's because such documents can include specific instructions to exclude beneficiaries if they contest the trust.

Special thanks to David S. Luber for telling me about this article.

November 18, 2005 in Current Events, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, November 17, 2005

Conservators Gone Bad -- Another Installment

Earlier on this blog, I reported on a series of articles published by the Los Angeles Times which exposes the abuses perpetrated by some conservators.

A fourth and final article in this series has been released.

See Robin Fields, Evelyn Larrubia, & Jack Leonard, For the Most Vunerable, a Promised Abandoned, LA Times, Nov. 16, 2005.

November 17, 2005 in Disability Planning - Property Management | Permalink | Comments (0) | TrackBack (0)

Oregon Seeks Visitor

The University of Oregon is looking for a visitor to teach Trusts and  Estates next year.

For more information, please contact Associate  Dean Margie Paris at mparis@uoregon.edu.

November 17, 2005 in Faculty Positions -- Visiting | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 16, 2005

Rosa Parks' Estate Triggers Battle

The estate of Rosa Parks, the civil rights icon who refused give up her seat on the bus in 1955, is now embroiled in a battle.

As reported in Jeffrey Zaslow, Rosa Parks's Death Stirs Up Bitter Feud Over Her Estate, Wall St. J., Nov. 16, at A1:

Her will and trust name her longtime assistant, Elaine Steele, and a retired judge, Adam Shakoor, as her personal representatives, or administrators, of the estate. But last week Mrs. Parks's nephew, William McCauley, filed a petition in Wayne County Probate Court in Detroit demanding that he be named her representative instead. His lawyer, Darren Findling, says Mr. McCauley plans to contest the will, signed in 2003, arguing that Mrs. Parks was mentally incapable of signing it and that her caregivers exerted undue influence.

The court fight is the culmination of a feud that Mrs. Parks tried to patch up during her lifetime. Family members say that caregivers, including Ms. Steele, took advantage of Mrs. Parks for monetary gain. But others, including Mr. Shakoor, disagree. They say that Ms. Steele and those who oversaw Mrs. Parks's affairs loved and protected her, especially after she began suffering from dementia in recent years. "She was well taken care of," says former Detroit Mayor Dennis Archer, who was named a court-appointed attorney for Mrs. Parks last year.

November 16, 2005 in Current Events, Wills | Permalink | Comments (0) | TrackBack (0)

Beam-up Delayed

Earlier on this blog, I reported that several grams of James Doohan's (Scotty of Star Trek fame) ashes were going to be sent into space by Space Services Inc. in late 2005.

The launch has been delayed.  As reported in Doohan Memorial Spaceflight Delayed, Startrek.com, Nov. 8, 2005:

The countdown for the "Explorers Flight" — containing the ashes of more than 160 participants including Doohan's — cannot commence until another vehicle is successfully launched in late November or early December. Then, the launch field at Vandenberg Air Force Base shuts down from mid-December through the end of January.

Thus, the likely timeframe for the Explorers Flight is February or March of 2006, according to Susan Schonfeld of Space Services, Inc. (SSI), the company providing the memorial flight service.

November 16, 2005 in Current Events, Death Event Planning | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 15, 2005

Conservators Gone Bad

A recent series of articles in the Los Angeles Times exposes the abuses perpetrated by some conservators.

Part One:  Robin Fields, Evelyn Rubia, & Jack Leonard, When a Family Matters Turns into a Business, LA Times, Nov. 13, 2005:

The Times examined the work of California's professional conservators, reviewing more than 2,400 cases, including every one they handled in Southern California between 1997 and 2003.

Among the findings:

•  Seniors lose their independence with stunning swiftness. More than 500 were entrusted to for-profit conservators without their consent at hearings that lasted minutes. * * *

•  Some conservators misuse their near-parental power over fragile adults, ignoring their needs and isolating them from loved ones. One withheld the allowance that a disabled man relied on for food, leaving him to survive on handouts from a church. Another abruptly moved a 95-year-old woman to a care home and for a month refused to tell her daughter where she was.

•  In the most egregious cases, conservators plunder Seniors estates. One took 88-year-old Thelma Lara bee's savings to pay his taxes and invest in a friend's restaurant. Helen Smith's conservator secretly sold Smith's house at a discount — to herself. The conservator's daughter later resold it for triple the price.

•  More commonly, conservators run up their fees in ways large and small, eating into Seniors assets. A conservator charged a Laos Angel es woman $170 in fees to have an employee bring her $49.93 worth of groceries. Palm Springs widow Mary Edeline kept paying from beyond the grave: Her conservators charged her estate $1,700 for attending her burial.

•  Once in conservator's grasp, it is difficult — and expensive — for seniors to get out. Courts typically compel them to pay not only their own legal fees, but those of their unwanted guardians as well. In the 15 months it took Theresa Herrera's grandson to unseat her conservator, almost half of the 92-year-oldie's $265,000 estate had been exhausted.

Probate courts are supposed to supervise their work. Yet oversight is erratic and superficial. Even when questionable conduct is brought to their attention, judges rarely take action against conservators.

Part Two:  Jack Leonard, Robin Fields, & Evelyn Rubia, Justice Sleeps While Seniors Suffer, LA Times, Nov. 14, 2005.

Part Three:  Evelyn Rubia, Jack Leonard, & Robin Fields, Missing Money, Unpaid Bills and Forgotten Clients, LA Times, Nov. 15, 2005.

Special thanks to Prof. Joel C. Dobris of the University of California -- Davis for pointing out this series of articles.

November 15, 2005 in Disability Planning - Property Management | Permalink | Comments (14) | TrackBack (0)

Moderated Comments Now Active on This Blog

Effective with this posting, moderated comments have been activated for this blog, as well as the other blogs on the Law Professor Blogs Network.

You may make a comment on any new posting by clicking on the "Comments" link at the end of a posting.

Note that comments are moderated, that is, a comment will not appear on this site until the blog editor approves the comment.  This requirement is imposed because the blog editor may be held liable for the publication of comments under the theory of publisher liability. Because of publisher liability concerns, the Law Professor Blogs Network does not allow automatic comment publishing.

November 15, 2005 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Monday, November 14, 2005

Settling Lawsuits With Trusts

A recent article explores the benefits of using a trust to receive lawsuit settlement proceeds when the plaintiff is a minor or an incapacitated person.  See Thomas E. Simmons (Associate, Gunderson, Palmer, Goodsell & Nelson LLP, Rapid City, SD), Using Trusts to Settle Lawsuits, Prob. & Prop., Nov./Dec. 2005, at 52.

Mr. Simmons concludes as follows:

With only a few exceptions, trusts are the preferred vehicles for settlement funds for children or individuals with disabilities because of greater flexibility and protections for the individual beneficiaries.  Often, trusts are overlooked by plaintiff's attorneys because of the perceived costs or delays in waiting for a busy trust attorney to complete the drafting process.  On closer examination, these perceived disadvantages disappear in most situations.

November 14, 2005 in Articles, Trusts | Permalink | TrackBack (0)

Carryover Basis Revisited

In Marc S. Bekerman (Partner, Fleischman & Bekerman LLP, New York, NY) & William P. LaPiana (Rita and Joseph Solomon  Professor of Wills, Trusts, and Estates, New York Law School), Carryover Basis? Have We Learned From History?, Prob. & Prop., Nov./Dec. 2005, at 38, the authors "analyze the modified carryover basis system contained in Code § 1022, identify problems that may require legislative or administrative solutions, and present suggestions in planning for such a system."

Bekerman and LaPiana conclude that:

The step-up in basis on property acquired from a decedent under Code § 1014 is likely tied directly to the future of the estate tax.  Because many forces are leading towards the repeal of the estate tax, one must anticipate that the step-up in basis currently permitted under Code § 1014 is also in jeopardy.  Although a pure carryover basis has already been dismissed implicitly, both by the retroactive repeal of the previous attempt to impose such a system and the enactment of Code § 1022(b), which permits a modified system allowing a certain amount of basis adjustments, estate planners must begin to consider drafting for carryover basis.

November 14, 2005 in Articles, Estate Planning - Generally | Permalink | TrackBack (0)