Wills, Trusts & Estates Prof Blog

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

Friday, April 26, 2013

Article on Indignity Probate Cases

WillsVeronica Stoica recently published an article entitled, Overview of Indignity Probate Cases, Journal of Criminal Investigation, No. 1/2012 (Sept. 30, 2012). Provided below is the abstract from SSRN:

Unworthiness to inherit is negative condition that any successor must meet to collect the sequence left by one whose legacy will be passed so that everyone who is guilty of committing intentional acts provided expressly and exhaustively by any of the articles 958-959 Civil Code is removed from the legacy that could have a pick.

April 26, 2013 in Articles, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

IRA Accounts Are Subject To Bankruptcy

IRABrandon Clark and his wife Heidi Heffron-Clark filed for Chapter 7 bankruptcy in 2010. Almost a decade before they filed for bankruptcy, Mrs. Clark inherited an IRA from her mother in 2001. At the time that the Clarks filed for bankruptcy neither spouse was retired. The Clarks claimed that Mrs. Clark's IRA was exempt under both Wisconsin state law and 11 U.S.C. § 522(b)(3)(C) from their creditors.

In Rameker v. Clark, the Seventh Circuit Court of Appeals held that because the funds within Mrs. Clark's IRA did not represent their retirement funds, it could not sheltered from their creditors. The court reasoned that if it choose to exempt those funds it would basically allow assets that are freely being used for current consumption to be sheltered from potential creditors. The court also further stated that an inherited IRA does not have the same attributes as other retirement tools because the money in the inherited IRA cannot remain in the IRA until the owner's retirement.

See Rameker v. Clark, No. 12-1241 & 12-1255, United States Court of Appeals (7th Cir. 2013).

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) and Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

April 26, 2013 in Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Thursday, April 25, 2013

New Case: Watterson v. Burnard

Unknown-2Property in a revocable trust is liable for tort claims when the suit was filed before the settlor’s death.  In Watterson v. Burnard, the intermediate Ohio appellate court held that property held in a revocable trust is subject to tort claims against the settlor where the tort action was filed, but not concluded, before the settlor’s death. 

See Watterson v. Burnard, No. L–12–1012, 2013 WL 425161 (Ohio. Ct. App. Feb. 1, 2013).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

April 25, 2013 in New Cases, Trusts | Permalink | Comments (0) | TrackBack (0)

Anthony Marshall’s Surrender Date Set, Wife Breaks Down in Court


As I have previously discussed, Anthony Marshall remains free on bail while he appeals his 2009 conviction.

Anthony Marshall and wife Charlene recently appeared in court to set the date for Marshall’s prison surrender.  If the Court of Appeals in Albany decides not to take Marshall’s case, Marshall must surrender on June 17. 

Charlene Marshall burst into tears during the court appearance, hugged her husband in his wheelchair, and told him, “You’re not going to jail, honey.”  Charlene was portrayed during her husband’s 2009 trial as “the greedy muse behind the swindling.”

Anthony Marshall and his lawyer Francis Morrissey face one to three years in prison after swindling Marshall’s famous philanthropist mother Brooke Astor out of over $60 million in bequests.  Marshall maintains he was merely providing for his wife if he were to predecease her.

See Laura Italiano, Emotional Wife of Anthony Marshall Breaks Down During Court Appearance, New York Post, Apr. 19, 2013.

April 25, 2013 in Current Events, Estate Planning - Generally, Malpractice | Permalink | Comments (0) | TrackBack (0)

Warnings of Elder Abuse

DementiaThere is a growing concern of elder abuse. Aging individuals that suffer from mental diseases like dementia are particularly vulnerable to abuse. Below are warning signs that can be helpful to raise a suspicion of elder abuse. Taken individually these warnings are not inherently meaningful. However, any combination of these signs could indicate a problem with abuse. 
  1. The caregiver is secretive about the elder’s finances. 
  2. The elder is financially supporting the caregiver. 
  3. The caregiver isolates the elder from others. 
  4. The caregiver insists on being in the room when anyone else is present. 
  5. The caregiver has a history of substance abuse.
  6. There are changes in the estate planning paperwork.
  7. The caregiver moves the elder to his home without warning. 

See Carolyn Rosenblatt, Is a Family Member Ripping Off Your Aging Parent?, Forbes, Apr. 22, 2013.

April 25, 2013 in Elder Law | Permalink | Comments (0) | TrackBack (0)

Nigerian Supreme Court Upholds Bini Succession Law

Court FightThe Supreme Court of Nigeria affirmed a custom known as the Bini Law of Succession in Nigeria. Under this succession law, "the first son inherits his father's place of abode (Igiogbe)." The challenge came from Edward Omorodion Uwaifo, who was seeking to set aside his father's entire will. As the first son, Edward was suppose to inherit the Igiogbe; however, his father's will gave the Igiogbe to someone else. The court ruled against the son in part but re-affirmed the customary tradition of the Bini Law of Succession by commenting that it was against Bini customary law to disinherit Edward. Justice Suleiman Galadima held that while the portion of the will that violated Bini could be set aside, the other portions in the will could be salvaged. At issue here was Pa Daniel Ediagbonya Uwaifo's house in Benin City. 

See Adelanwa Bamgboye, Atika Balal, & John Chuks Azu, Nigeria: Supreme Court Re-Affirms Bini Succession Law, allAfrica: Daily Trust, Apr. 23, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

April 25, 2013 in Intestate Succession | Permalink | Comments (1) | TrackBack (0)

Estate Planning for Digital Assets

Digital PlanningI have just posted a revised version of my article, Estate Planning in the Digital Age.  The revision covers the additional states that have enacted or or considering enacting digital asset legislation relevant to estate planning.  The article also expands on planning suggestions and contains a comprehensive form for use in preparing an inventory of digital assets.

April 25, 2013 in Articles, Estate Planning - Generally, Technology, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Article on Managing a Digital Estate

Jamie HopkinsJamie Patrick Hopkins (Assistant Professor of Taxation, The American College of Financial Services) recently published an article entitled, Afterlife In the Cloud: Managing a Digital Estate, 5 HASTINGS SCI. & TECH. L.J. 210 (2013). Provided below is the abstract from SSRN:

The rapid development of electronic devices and widespread access the internet has ushered in a new age: the digital age. The digital age has changed the manner in which assets are created and transferred. This digitalization of wealth challenges the effectiveness and efficiencies of traditional estate planning mechanisms. Additionally, modified estate planning techniques and the development of digital estate planning services have created serious privacy, security, and efficiency concerns for the transfer and management of digital estates. As such, creative and innovative digital estate planning solutions are required to ensure the privacy, security, and proper disposition of digital estates. However, because the problems facing digital estate planning are complex, a combination of legislative action and improved online service agreements are essential to solving the digital estate dilemma. Until digital asset ownership and transferability questions are resolved, digital estate planning will remain in flux as traditional estate planning appears ill suited for the management and disbursement of digital assets.

April 25, 2013 in Articles, Estate Administration, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 24, 2013

ACTEC Fellow and Past President Passes Away

Unknown-14On April 20, 2013,  ACTEC Fellow and Past President, Joe C. Foster, Jr. suffered a stroke and passed away. Below are some thoughts about Joe from ACTEC President, Duncan Osbourne:

Joe was a valued member of The American College of Trust and Estate Counsel for forty-one years, and served as the College’s thirty-first President from 1985-1986. He was a member of the ACTEC Historical Commission and a co-author of The History of American College of Trust and Estate Counsel, as well as being one of the original Directors and first Secretary of the American College of Trust and Estate Counsel Foundation. His many friends in the College will miss his wisdom and his leadership of the College

Please click here to read Joe’s obituary notice.

April 24, 2013 in Current Events | Permalink | Comments (0) | TrackBack (0)

New Case: Manary v. Anderson

Unknown-2A Washington “superwill” revokes a nonprobate arrangement by referring to the asset.  Under Washington law, the owner of a nonprobate asset may dispose of that asset by will, thus revoking the nonprobate arrangement, by specifically referring to the asset in the owner’s will.  In Manary v. Anderson, the Supreme Court of Washington State held that the settlor and trustee of a revocable trust who retained the right to manage and live on real property transferred to the trust was an owner for purposes of the statute, that the real property was a nonprobate asset under the statute, and that the owner revoked the trust with regard to the real property by specifically devising the real property in the owner’s will; the statute does not require the testator to refer to the specific will substitute.

See Manary v. Anderson, 292 P.3d 96 (Wash. 2013).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

April 24, 2013 in New Cases, Wills | Permalink | Comments (0) | TrackBack (0)