Wills, Trusts & Estates Prof Blog

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

Wednesday, February 25, 2009

Prof. Gallanis accepts chaired position at University of Iowa


Thomas P. Gallanis of the University of Minnesota has accepted a chair at the University of Iowa, to start July 1, 2009.

He specializes in trusts and estates, first-year Property, and English legal history.

Congratulations, Tom!!

February 25, 2009 in Appointments and Honors | Permalink | Comments (0) | TrackBack (0)

Preventing estate litigation CLE

Rpte_2The American Bar Association Section of Real Property, Trust & Estate Law is sponsoring a teleconference and live audio webcast on March 3, 2009 entitled Feuds and Flashpoints: Detecting and Defusing Potential Estate Litigation During Estate Planning and Post Mortem.

Here is a description of the program:

Conflicts can easily arise during the estate planning process or post-mortem. The traditional goals of avoiding taxes and probate often ignore the potential for conflict. Litigation may reduce the amount heirs receive as much or more than probate and taxes while irreparably harming family relationships.

This teleconference and live audio webcast will cover the following topics and more:

  • How to use a "Flashpoint Detector Questionnaire" that can identify most potential estate litigation.
  • Alternative ways and times that estate planning and estate litigation attorneys can assist their clients in avoiding or better managing estate litigation.
  • How to manage estate conflict to deliver much more financial and emotional value to clients, provide higher client satisfaction, and higher personal satisfaction and more client referrals to the practitioner.

February 25, 2009 in Conferences & CLE | Permalink | Comments (0) | TrackBack (0)

Gift to “lawful” descendants excludes non-marital children

WashingtonIn a case of first impression in Washington, the court in the case of In re Estate of Wright, 196 P.3d 1075 (Wash. Ct. App. 2008), held that the use of the word “lawful” to modify the term descendants limits those who may take to persons born during a valid marriage.

The court also held that enforcing the testator’s exclusion of non-marital children is not a violation of the Equal Protection Clause of the Fourteenth Amendment.

February 25, 2009 in New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 24, 2009

A home held in trust qualifies for homestead protection but the express language of the testatrix’s will made it subject to creditors

FloridaThe testatrix transferred her home and the adjacent vacant lot to a trust of which she was the sole beneficiary for life. On her death, the properties were to be distributed to her estate and her will devised the home to her daughter and the vacant lot to her son.

The will also stated that all claims, charges, allowances, and costs of administration were to be paid equally out of the two gifts to her children. The residuary estate was insufficient to pay all of the claims on testatrix’s estate and her daughter claimed that the home was exempt as homestead property.

In Cutler v. Cutler, 994 So. 2d 341 (Fla. Dist. Ct. App. 2008), the court held that the home did not lose its status as homestead because of the transfer to the trust but that the language of the will made the home subject to the testatrix’s debts.

February 24, 2009 in Estate Administration, New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Control over non-probate property devices not a per se denial of elective share rights

MarylandThe decedent had created a funded inter vivos revocable trust which on his death was for the sole benefit of his daughter by a prior marriage.

His widow renounced the will and claimed her statutory one-third share of decedent’s estate under Maryland’s forced share statute.

In Karsenty v. Schoukroun, 959 A.2d 1147 (Md. 2008), the court held that retention of control by the decedent was not enough to make an inter vivos transfer subject to the elective share and remanded for a determination of whether or not the transfer was intended to frustrate the spouse’s martial rights.

February 24, 2009 in New Cases, Non-Probate Assets, Wills | Permalink | Comments (0) | TrackBack (0)

Order issued regarding Helmsley Trust

Helmsley_2An order was recently signed by Surrogate Webber in New York regarding the Leona M. and Harry B. Helmsley Charitable Trust which is the sole residuary beneficiary under Leona's will.

The trustees had filed an action asking the court to determine the scope of their discretion to apply trust funds for charitable purposes. 

The "mission statement" of the trust dated March 1, 2004 provides that the trustees may make grants for "(1) purposes related to the provision of care for dogs; and (2) such other charitable activities as the Trustees shall determine."

The trustees asserted that this mission statement was revoked by later documents. 

The Attorney General of the State of New York, representing potential charitable beneficiaries, successfully claimed that this issue is irrelevant because the trust expressly states that the trustee's discretion is not limited by mission statements. 

Accordingly, the court held that "the trustees may apply trust funds for such charitable purposes and in such amounts as they may, in their sole discretion, determine."

See Estate of Leona M. Helmsley (2968/07) as reported in New York Law Journal, Feb. 24, 2009, at 33.

Special thanks to Mark Bekerman (Associate Director of NYLS Graduate Tax Program) for bringing this opinion to my attention.

February 24, 2009 in Current Events, Trusts | Permalink | Comments (0) | TrackBack (1)

Expectancy to be the beneficiary of a living testator may be assigned

KansasThe testator’s child and her siblings signed an agreement relating to the testator’s care agreeing that the child would buy the testator’s home, that the testator would be placed under conservatorship, and that any conservatorship funds remaining at the testator’s death would belong to the child.

After the testator’s death, her will was admitted to probate and the remaining funds distributed under the will in equal shares to the testator’s children. The child’s suit against her siblings was dismissed by the trial court.

However, both the immediate appellate court and the state’s supreme court held that a prospective beneficiary may assign an expectancy under a will and that the child must have the opportunity to prove the existence of consideration, lack of fraud, and that the agreement embodied the parties’ intent. The child would also have a cause of action based on promissory estoppel. Rector v. Tatham, 196 P.3d 364 (Kan. 2008).

February 24, 2009 in Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, February 23, 2009

Will Hawaii become the 5th state to recognize civil unions?

HawaiiRecent developments in Hawaii may lead to the state becoming the fifth to recognize same-sex civil unions.  (Massachusetts and Connecticut allow same-sex marriage; California recognizes domestic partnerships; Connecticut, New Jersey, New Hampshire, and Vermont permit civil unions).

Here are some details from Mark Niesse, Hawaii is latest civil unions battleground, AP.com, Feb. 22, 2009:

  • Hawaii was the first state to enact a defense of marriage constitutional amendment.
  • The Hawaii house has already passed a same-sex civil union bill.
  • A Senate committee will vote on the bill tomorrow (February 24, 2009).
  • Governor Linda Lingle has not indicated whether she would sign or veto the bill.

February 23, 2009 in Current Events, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Heath Ledger's life insurance

LedgerEarlier today, I discussed the ramifications of Heath Ledger's winning of the Best Supporting Actor Oscar.

Another issue regarding his estate has also been recently settled.

At the time of his death, Heath had a life insurance policy for $10 million payable to his daughter, Matilda.  The insurer, ReliaStar Life Insurance Company, was reluctant to pay for two reasons.  First, there were allegations that Heath's death was suicide, rather than accidental.  Second, Heath may have lied on the life insurance application by stating that he never used illegal drugs.

A settlement has been reached but the terms are unknown.

See Heath Ledger Life Insurance Case Settled, TMZ.com, Jan. 29, 2009.

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

February 23, 2009 in Current Events, Non-Probate Assets | Permalink | Comments (3) | TrackBack (0)

Court attorney says Peter Falk does not need conservatorship

Falk_peterEarlier on this blog, I reported that actor Peter Falk's (aka Columbo) daughter (Catherine) had petitioned the court to take over her father's affairs claiming that he was suffering from Alzheimer's.

On February 19, 2009, the court appointed attorney (Clark R. Byam) filed a report in the Los Angeles Superior Court concluding that there is no ground to support placing Catherine in charge of her dad's affairs.  Byam met with Peter, his wife, his business manager, and others.  He found that Peter was "well-dressed, clean and composed."

The court hearing on this case is scheduled for today (February 23, 2009).

See AP, Peter Falk's care is adequate, USA Today, Feb. 20, 2009.

February 23, 2009 in Current Events, Elder Law, Guardianship | Permalink | Comments (0) | TrackBack (0)