Wills, Trusts & Estates Prof Blog

Britany Spears mentally incompetent to appear in probate court

According to AP, Attorney: Spears not fit enough to take part in probate case, CNN.com, May 30, 2008:   

Britney Spears is not yet fit to participate in court proceedings in her conservatorship case, her lawyer told a Los Angeles Superior Court commissioner Thursday. * * *
   

Ingham told the court afterward that Spears' medical condition is "fluid" because her treatment is changing.
   

Spears' probate case is scheduled to go to trial July 31, but Ingham said it could be "harmful" for her to participate. Goetz agreed and said Spears' diagnosis is not complete.
   

The 26-year-old singer and her estate have been under the conservatorship of her father for four months.   

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.

Should the way in which Elder Law is practiced be modernized?

Peter C. Sisson (Principal, Sisson & Sisson, Boise, Idaho) has recently published his article entitled Life Care Planning: The Comprehensive Elder Law Approach to Planning for the Chronic Care of Seniors, 44 Idaho L. Rev. 481 (2008).

 
Here are some excerpts from his article:   

My conclusion, which has not changed since the enactment of the DRA, is that the harder the government makes it for seniors to qualify for Medicaid, the more important the elder law attorney’s services become. The more complex the system, the more seniors need assistance and advocates in figuring it out. Seniors and their families need more guidance than ever in working their way through the maze of Medicaid eligibility rules. * * *
   

As an elder law attorney, I wanted to comprehensively help my senior clients address their concerns, yet the main driving force behind the voiced concern (the financial cost of long-term care) was their healthcare situation. * * *
   

In 2005, I determined to move my law firm to a life care planning model of practice in order to better serve my senior clients and their children who were overwhelmed trying to manage all these issues for their parents. * * *
   

Moving my traditional Medicaid and estate planning practice toward life care planning was a paradigm shift for me and my law firm, away from the manner in which more traditional elder law is practiced. Life care planning for seniors can accurately be described as taking an elder-centered approach rather than an assets-centered approach. The life care planning model of elder law practice recognizes that helping seniors and their families with their financial concerns regarding how to pay for care is an important piece of the long-term care puzzle. Life care planning recognizes, however, that asset protection is only one piece of the puzzle, not the entire puzzle. The primary emphasis of our representation is on the quality of care that our senior clients receive, and the quality of life they and their loved ones experience as they move through what we call the long-term care maze. We help our clients navigate that maze by helping them find, get, and pay for quality long-term care.

Stonehenge -- An Elite Cemetery?

It appears that Stonehenge may have, among other things, served as a cemetery.  The following excerpts are from AP, Stonehenge was a place of burial, researchers say, CNN.com, May 29, 2008:

England's enigmatic Stonehenge served as a burial ground from its earliest beginnings and for several hundred years thereafter, new research indicates.

Dating of cremated remains shows burials took place as early as 3000 B.C., when the first ditches around the monument were being built, researchers said Thursday.

And those burials continued for at least 500 years, when the giant stones that mark the mysterious circle were being erected, they said.

"It's now clear that burials were a major component of Stonehenge in all its main stages," said Mike Parker Pearson, archaeology professor at the University of Sheffield in England and head of the Stonehenge Riverside Archaeological Project.  * * *

Parker Pearson added: "I don't think it was the common people getting buried at Stonehenge; it was clearly a special place at that time. One has to assume anyone buried there had some good credentials."

Symptoms of Over-Medication Mimic “Old Age” Aliments

An older person who starts behaving in a unusual or bizarre manner may not actually be suffering from Alzheimer’s, Parkinson’s, dementia, or some other aliment.  Instead, the symptoms may be the result of over-medication, either inadvertent or intentional.

For a detailed discussion of the problem and the drugs which commonly “misbehave” in older individuals, see Elizabeth Cohen, Is Grandma drugged up?, CNN.com, May 29, 2008.

The Use of Advance Payment Retainers in the Estate Planning Context

David A. Berek (Credit Suisse Family Wealth Management) and Fred McMorris (McMorris Law Offices, Schaumburg, Illinois) have recently published their article entitled Engagement Letters, Fees, and the Dowling Case, 96 Ill. B.J. 262 (2008).

Here are some excerpts from their article:

Ethical issues for trust and estate practitioners can be particularly acute because the practice area potentially involves multiple clients and highly emotional issues as final wishes and finances. An important key risk management consideration for trust and estate practitioners is the use of engagement letters, especially in light of the recent development in Dowling v Chicago Options Assoc, Inc, 226 Ill 2d 277, 875 NE2d 1012 (2007).
   

The Dowling case specifically discusses fee arrangements, and provides a guide on how to detail fee arrangements, in, for example, an engagement letter. * * *
   

[A]n important element of any engagement letter is to describe the fee arrangement in detail. The Dowling opinion noted that any written fee arrangement or retainer agreement, regardless of the type of retainer contemplated, should clearly define the kind of retainer being paid. If the parties agree that the client will pay a security retainer, that term should be used in the agreement. The agreement should also state that the funds remain the property of the client until used to pay for services rendered and that the funds will be deposited in a client trust account.
   

The Dowling opinion not only offers a review of the two types of retainers that were previously recognized by the Illinois Supreme Court: classic and security interest retainers, but also recognizes the viability of advance payment retainers in Illinois.
   

A classic retainer, also referred to as a true or general retainer, is paid by a client to the attorney to secure the attorney's availability during a specified period or for a specified matter. This type of retainer is earned when paid and immediately becomes property of the attorney, regardless of whether the attorney ever actually performs any services for the client.
   

Under a security retainer, funds paid to the attorney are not considered present payment for future services but are intended to secure payment of fees for the future services the attorney is expected to perform. This type of retainer remains the property of the client and therefore must be deposited in a trust account and kept separate from the attorney's own property until the lawyer applies it to charges for services that are actually rendered. Any unused portion of the retainer is refunded to the client * * *.
   

An advance payment retainer consists of a present payment to the attorney in exchange for the commitment to provide legal services in the future. Ownership of this retainer passes to the attorney immediately upon payment.
   

“[A]dvanced payment retainers should be used "only sparingly, when necessary to accomplish some purpose for the client that cannot be accomplished by using a security retainer." * * *
   

"Advance payment retainer agreements must be in writing and they must clearly disclose to the client the nature of the retainer, where it will be deposited, and how the lawyer or law firm will handle withdrawals from the retainer in payment for services rendered."
   

The written advance payment retainer agreement must
   

• advise the client of the option to place his or her money into a security retainer.
• clearly advise the client that the choice of the type of retainer to be used is the client's alone.
• explain if the attorney is unwilling to represent the client without receiving an advance payment retainer, including the attorney's reasons why.
• set forth the special purpose behind the retainer and explain why an advance payment retainer is advantageous to the client.

These points are important from a drafting perspective, because if "the parties' intent cannot be gleaned from the language of their agreement, we conclude that the agreement must be construed as providing for a security retainer."

What to do about revoked wills?

Assume that you have prepared Client’s will and you have retained the original will in your firm’s safe deposit box.  Client then executes a subsequent will.  What should you do with the “old original.”
   

This is the topic of a recent article by Helen Gunnarsson entitled Where there are two wills, is there a way?, 96 Ill. B.J. 232 (2008).  Here is an excerpt from her article:

755 ILCS 5/6-1(a) provides in relevant part that "[i]mmediately upon the death of the testator any person who has the testator's will in his possession shall file it with the clerk of the court of the proper county...." Subsection (b) provides that a person who willfully secretes a will for 30 days after learning of the testator's death may, upon conviction, be sentenced as in cases of theft of property classified as a class 3 felony.

Most lawyers who participated in the discussion expressed no doubt about the proper procedure under the statute. Oak Park lawyer Joel Schoenmeyer said, "I seem to recall a Judge...addressing this in his courtroom by telling an attorney that he was under a duty to file all [w]ills made by the decedent, because it was the court's job to decide which was the valid one. Since then I've always gone by the adage 'File 'em all and let God (the Judge) sort 'em out.'" * * *
   

But other lawyers differed, noting that subsection (a) of the paragraph cited speaks of "the" will, and not, for example, "an original" will. "I don't think a person can have more than one will," opined Salem lawyer Curt Ferguson.

Noting that "[p]rior wills are (almost universally) revoked by subsequent wills," Chicago lawyer Thomas W. Williams agreed. "Prior wills are no longer wills. There is only one 'Last Will and Testament.'" * * *

But, wondered South Holland lawyer Scott Dillner, "why wouldn't you, with the client's permission of course, rip up the old will upon signing a new one?" Good question, agrees Schoenmeyer, who says he counsels all of his estate planning clients to do just that.

Special Needs Planning CLE

The American Bar Association Section of Real Property, Trust and Estate Law and the ABA Center for Continuing Legal Education are sponsoring a teleconference and live audio webcast on June 3, 2008 entitled Practical Aspects of Special Needs Planning Part 1: Government Benefits — What You Already Know and the Rest of the Story.

Here is a description of this program:

Planning for the future is never easy, and it can be even more difficult when a loved one is disabled. What are the best steps to provide for the future?  Do you have the specialized knowledge that will get your clients the security they need? Several estate planning attorneys have been disbarred or sued due to their failure to know the implications of SSI, Medicaid eligibility, and other special needs rules.  Don’t risk your client’s future plans or your license. This first program in our three-part series will focus on government benefits and cover such topics as:

• SSI and how to qualify for SSI payments
• The four types of SSI income and how they affect traditional trust administration
• The relationships between SSDI, SSI, Medicaid, and Medicare
• Important Social Security benefits
• How the Social Security Administration makes disability determinations —  the 5 Step Sequential Evaluation Process
• The seven stages of SSA Appeals
• The three great rules for distributions from trusts
• The transfer of assets penalty and what alternatives exist to avoid application to your client
• When a special needs trust is necessary and alternative planning techniques that work just as well

Will a curse help carry out body disposition desires? Shakespeare thought so.

William Shakespeare is buried in the Holy Trinity Church in Stratford-upon-Avon.  Some scholars believe that he was very concerned about the disposition of his body upon death and thus wrote on a stone marker which is now above his grave, "Blest be the man that spares these stones and curst be he that moves my bones."

His gravesite, a heavily visited tourist destination, is deteriorating.  According to AP, Workers Brave Shakespeare's Curse in Restoring the Bard's Grave, FoxNews.com, May 28, 2008:

People who love the church and its place in British literary history want to fix it — provided they can do so without digging up Shakespeare's remains and facing the mysterious threat.

"We're avoiding the curse," said Josephine Walker, a spokeswoman for the Friends of Shakespeare's Church group. "We are not lifting the stones, we are not looking underneath, and the curse is for the bones underneath, so the curse is irrelevant for this work."

Wills, Trusts, & Estates Prof Blog Included on List of Top 50 Law School Blogs

In Alisa Miller, Legal Counsel: Top 50 Law School Blogs, CollegeDegrees.com, May 28, 2008, the Wills, Trusts & Estates Prof Blog is included in an unranked list of the top 50 law school blogs.

To all my readers, I greatly appreciate your continued support and contributions.

New York Recognizes Same-Sex Marriages From Other Jurisdictions -- Update

Earlier on this blog, I reported that on February 1, 2008, a New York appeals court held in Martinez v. County of Monroe that same-sex marriages that are valid in the jursidiction where performed are entitled to recognition in New York.

The court's decision is finally being implemented as reported in Jeremy W. Peters, New York to Back Same-Sex Unions From Elsewhere, NY Times, May 29, 2008:

Gov. David A. Paterson has directed all state agencies to begin to revise their policies and regulations to recognize same-sex marriages performed in other jurisdictions * * *.

In a directive issued on May 14, the governor’s legal counsel, David Nocenti, instructed the agencies that gay couples married elsewhere “should be afforded the same recognition as any other legally performed union.”

The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses. * * *

Legal experts said Mr. Paterson’s decision would make New York the only state that did not itself allow gay marriage but fully recognized same-sex unions entered into elsewhere.