Wills, Trusts & Estates Prof Blog

Texas lawyer disbarred for probate misconduct

The following is a description of the conduct which caused an Irving, Texas lawyer to be disbarred on June 2, 2008:

An evidentiary panel of the District 6A-B2 Grievance Committee found that [attorney's] great uncle executed a will naming [him] as independent executor. The will provided that the independent executor would serve without compensation. On Oct. 9, 2002, [the] great uncle died. Although he was administratively suspended, [attorney], as independent executor, hired himself as attorney to represent the estate. The employment agreement provided [that he] would be paid a legal fee of one-third the estate value for legal services rendered. As attorney for the independent executor, [he]neglected probate of the estate by failing to file an inventory and appraisement until a show cause order was issued. On [his] advice, the estate invested funds with another client of [attorney] that owed [attorney] attorney’s fees. On Aug. 1, 2006, [he] was removed as independent executor. The court found the fee charged by [him] as attorney was unconscionable and grossly excessive.

See Disciplinary Actions, 72 Tex. B.J. 216, 216 (2009).

Estate tax -- past and possible future

Robert Moshman (Writer and Attorney) has written an article entitled The Estate Analyst: "Plateau or Pinnacle", Jan. 28, 2009.

Here is a summary of the article:

The article overviews the past 8 years of the fabled estate tax repeal. It overviews the current state of the estate tax scheme, current and years past, 2001-2009. It also gives some practical advice for planners, while highlighting some of the possible changes that could happen in the coming years.

Potential problems with the Uniform Disclaimer of Property Interests Act of 2000

Adam Hirsch (William and Catherine VanDercreek Professor of Law, Florida State University College of Law) has recently posted on SSRN his article entitled Disclaimer Law and UDPIA's Unintended Consequences.

Here is the abstract of his article which is slated to appear in the April 2009 issue of Estate Planning:

The Uniform Disclaimer of Property Interests Act of 2000 (UDPIA) offers a Uniform law to define the rights of a beneficiary to reject (or disclaim) an inheritance. In prior articles, I have criticized various provisions of UDPIA on policy grounds. The present article identifies a number of instances where the Act fails to operate as it was intended to do. The legislative history of UDPIA reveals that as concerns (1) the formal requirements for executing a disclaimer, (2) the time limit for disclaiming, (3) the treatment of disclaimers of joint interests, (4) the right of an insolvent beneficiary to disclaim, and (5) the right of a beneficiary to disclaim following a judicial sale of inherited property, the drafters of the Act contemplated that it would operate differently from the way it actually does. The legislative history further suggests that the drafters' failure accurately to interpret the consequences of their own work product stemmed from time pressure, coupled with the complexity of the enterprise. But the upshot is that the plenary body of NCCUSL, voting to promulgate the Act, and local drafting committees, voting to adopt it, have relied on presentations and comments prepared by the drafting committee that misstate UDPIA's operation and thereby misled the Act's various electorates.

Gift Planning

Martin M. Shenkman (Member, Martin M. Shenkman, P.C.) has written a new article entitled The Practical Planner: "Gift Planning During Economic Uncertainty", Dec. 31, 2008.

Here is a summary of the article:

Gift planning is a substantial part of estate planning for many people. This article overviews some of the most popular techniques. It also contains changes to law, such as the gift exclusion increase from $12,000 to $13,000 in 2009. It also touches on some of new legislation that could have an impact on gift planning.

UK doctor to sell euthanasia kits

Dr. Philip Nitschke, the Australian doctor known as "Doctor Death," will start selling his euthanasia kits in the United Kingdom in May 2009 and internationally shortly thereafter.

His kit provides chemicals that the user mixes with barbiturates and when they change color properly, the user knows that a lethal mixture has been created.

The kits will sell for about USD $50.

Dr. Nitschke promotes the kits with online do-it-yourself euthanasia workshops.

For more details, see Jamie Doward,  'Dr Death' sells euthanasia kits in UK for £35, The Observer, March 29, 2009.

This is certainly an interesting business model in which your product is designed to cause no repeat business!  And, he better get payment upfront!

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

Retirement Benefit Planning

Alvin J. Golden (Ikard & Golden, P.C., Austin, Texas) has recently published his article entitled Selected Problems in Planning with Retirement Benefits: Community Property Issues and Creditor's Rights, 1 Est. Plan. & Comm. Prop. L.J. 169 (2008).

The article covers the following topics:

• General community property issues
• ERISA preemption and qualified plans
• Community property issues at death
• Aggregate versus individual asset theory
• The Bankruptcy Abuse Prevention and Creditor Protection Act
• Construction of state statutes

Article explains benefits of having a will and how to get one

A recent widely distributed AP article contains some excellent advice on why it is a good idea to have will.

Here are some of the benefits mentioned in Candice Choi, Don't let death steal your wishes: Write a will and take control, Lubbock Avalanche-Journal, March 29, 2009 at D2:

• Without a will, a person's property disposition desires expressed in other ways are unlikely to be legally binding.
• A person with a will can control "from the grave" how his or her property is used after death.
• A will may reduce family arguments.

The article also discusses a variety of ways (some good, some not-so-good) to obtain a will:

• Hiring an estate planning attorney.
• Using an online service.
• Doing-it-yourself.

Estate planning malpractice analyzed

Sharon B. Gardner (Partner, Crain Caton & James, Houston, Texas) has recently published her article entitled Project Runaway--One Day You're In As the Attorney and the Next Day You're Out!, 1 Est. Plan. & Comm. Prop. L.J. 111 (2008).

Here is an excerpt from the article's introduction:

This article traces the history of attorney liability in Texas as it relates to probate and trust lawyers.  After reviewing the general concepts of liability, this discussion will cover those claims unique to this area of practice.  This article will suggest ways to reduce potential liability in these often uncharted waters.  Also discussed is the viability of using arbitration agreements in fee arrangements in the context of legal representation.

The article further discusses a recent ethics opinion, requested from the State Bar of Texas by the author's law firm, regarding passing the cost of a legal malpractice claim defense to the underlying client in a way that is ethical when the claim is made by a third party.

Top SSRN Downloads

Here are the top downloads from January 28, 2009 to March 29, 2009 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	236	2008 Developments in Connecticut Estate and Probate Law Jeffrey A. Cooper, John R. Ivimey, Quinnipiac University School of Law, Reid and Riege, P.C., Date posted to database: February 21, 2009 Last Revised: February 21, 2009
2	159	Hurford: FLP Practice Pointers Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: February 11, 2009 Last Revised: February 23, 2009
3	90	Suggestions for the Treasury, the DOL, ERISA Plan Sponsors, Administrators, Representatives of Plan Participants and Potential Beneficiaries after Kennedy v. Plan Administrator of Dupont Savings and Investment Plan Albert Feuer, Law Offices of Albert Feuer, Date posted to database: February 19, 2009 Last Revised: March 7, 2009
4	73	Family Values and the Law of Inheritance Anne Alstott, Harvard University - Harvard Law School, Date posted to database: February 4, 2009 Last Revised: February 6, 2009
5	72	'To Be Human': A Psychological Perspective on Property Law Jeremy A. Blumenthal, Syracuse University - College of Law, Date posted to database: January 29, 2009 Last Revised: February 10, 2009
6	70	College Savings Plans: Not Just for Education Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: March 11, 2009 Last Revised: March 11, 2009
7	63	In Defense of Conservation Easements: A Response to 'The End of Perpetuity' Nancy A. McLaughlin, W. William Weeks, University of Utah S.J. Quinney College of Law, Author - affiliation not provided to SSRN, Date posted to database: January 24, 2009 Last Revised: February 9, 2009
8	50	Theorizing the Charitable Tax Subsidies: The Role of Distributive Justice Miranda Perry Fleischer, University of Illinois College of Law , Date posted to database: February 25, 2009 Last Revised: March 20, 2009
9	48	Philosophical Foundations of Proprietary Remedies Lionel Smith, Quebec Research Centre of Private and Comparative Law, Date posted to database: February 20, 2009 Last Revised: February 20, 2009
10	45	A Unanimous ERISA Decision by the Supreme Court Raises Troubling Questions Albert Feuer, Law Offices of Albert Feuer, Date posted to database: February 2, 2009 Last Revised: February 9, 2009

Equal may not be fair

Many parents believe that dividing their estate equally among the children is a fair way to distribute their property.  However, this may not be the case.

The following excerpt is from Eileen Aj Connelly, With wills, 'equal' not always ' fair', Lubbock Avalanche-Journal, March 29, 2009, at D1:

Splitting assets evenly between siblings may seem like the equitable way to divide an estate * * *. But when issues like how much parents contributed to the education of one sibling or the caregiving role of another are factored in, what's fair may be quite different from an even split.

* * * [N]ever assume that after [parents] die, their children will work things out, especially when it comes to things like family heirlooms.