Wills, Trusts & Estates Prof Blog

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

Wednesday, September 27, 2017

Book on A Grief Observed

51i+vFRii2L._SX330_BO1 204 203 200_C.S. Lewis published a book entitled, A Grief Observed (1961). Provided below is a summary of the book:

Written after his wife's tragic death as a way of surviving the "mad midnight moment," A Grief Observed is C.S. Lewis's honest reflection on the fundamental issues of life, death, and faith in the midst of loss. This work contains his concise, genuine reflections on that period: "Nothing will shake a man -- or at any rate a man like me -- out of his merely verbal thinking and his merely notional beliefs. He has to be knocked silly before he comes to his senses. Only torture will bring out the truth. Only under torture does he discover it himself." This is a beautiful and unflinchingly honest record of how even a stalwart believer can lose all sense of meaning in the universe, and how he can gradually regain his bearings.

September 27, 2017 in Books, Death Event Planning, Estate Planning - Generally | Permalink | Comments (1)

Can the Beneficiary of a Special Needs Trust Change the Trustee?

Home-banner2A special needs trust does not allow for a beneficiary to control trust assets or distributions; these powers are reserved solely to the trustee. This can be problematic if the trustee is unable to adhere to their fiduciary responsibilities, whether it be from incompetence or fraud. Generally, in severe enough cases, a beneficiary of a special needs trust can petition the court to have the trustee removed. A particular issue for beneficiaries of special needs trusts is that many may not have the legal competence required to bring such a claim. Where the capacity of the beneficiary may be an obstacle to removing a dishonest trustee, it is important for settlors to include language in the trust instrument to accommodate this situation.

See Can the Beneficiary of a Special Needs Trust Change the Trustee?, Academy of Special Needs Planners, August 7, 2017.

September 27, 2017 in Estate Planning - Generally, Trusts | Permalink | Comments (0)

Article on Tales from a Form Book: Stock Stories and Transactional Documents

Storyteller_Anker_Grossvater_1884Susan Chesler & Karen J. Sneddon recently posted an Article entitled, Tales from a Form Book: Stock Stories and Transactional Documents, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Legal transactions are stories. They are the stories of marriages, business partnerships, acquisitions, births, and deaths. These stories are built around the hopes, fears, wishes, and concerns of the particular parties to the transaction. But at their core, these stories are not just about the individual circumstances of those parties. At the core of each of these individual stories is a stock story. Virtually every transactional document starts with a form. And stock stories are embedded within each form document. The forms feature ingénues, tricksters, misers, and sages who undertake journeys, confront mutinies, and at times achieve glory.

This article examines the tales of transactions by examining the stock stories within transactional document forms. This article will first define the term “stock story,” highlighting the applicability of the term “stock story” to the law and its primary focus to date on litigation-based legal documents. This article will then identify and analyze the stock stories embedded within a variety of transactional form documents, such as wills, trust agreements, employment contracts, premarital agreements, and advance directives. Specifically, the article will analyze the (a) stock characters, (b) stock plots, (c) stock situations, and (d) stock inevitable outcomes of transactional form agreements. This article will then address the possibilities and pitfalls related to recognition of the stock stories embedded within these transactional forms. 

As with the use of stock stories by lawyers in any situation, there is a concern about misrepresenting the unique nature of the individual transaction, as well as the potential for overreliance on the stock story, which may ultimately lead to hindering drafting innovation. Yet to the contrary, the recognition of stock stories in transactional form documents may also allow for effective narrative shortcuts, providing valuable guidance to the formation of the transaction as well as enabling a better understanding of the transaction by the parties, drafters, and courts. Rather than undercut or negate the value of utilizing transactional form documents and transactional form books, this article seeks to use the understanding of transactional form documents as stock stories to better appreciate how to most effectively use such forms in practice.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

September 27, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

RPTE Writing Competition Winners Announced

Flat 800x800 075 fThe Real Property, Trust and Estate (RPTE) Law section of the American Bar Association (ABA) announced the first through third place winners of its 2017 writing competition for students. Harry Dao, from the University of Alabama School of Law, took first prize and won $2,500, a free one-year membership to RPTE, and a free trip to the Fall Leadership Meeting in Monterey, CA. Caitlinn Raimo, from Seton Hall University School of Law, earned second place and $1,500. Shawn Walker, from University of Oregon School of Law, took third place and $1,000.

See Letter to Section Officers and Publications Committee, Real Property, Trust and Estate Law.

September 27, 2017 in Current Events, Estate Planning - Generally, Writing Competitions for Students | Permalink | Comments (0)

Tuesday, September 26, 2017

Chambers High Net Worth Guide 2017 Recognizes Eleven Day Pitney Attorneys

Ec6f2ed09c52cfe893304aa5b1c2e074--oscar-winners-award-winnerEleven Day Pitney LLP attorneys specializing in trusts and estates were recognized in the 2017 Chambers High Net Worth Guide. The publication is targeted specifically at the private wealth market and features extensive evaluation of leading lawyers and law firms. “All of the lawyers recognized are listed below:

Leila Dal Pos, Private Wealth Law– Massachusetts

Steven Fast, Private Wealth Law– Connecticut

Barbara Freedman Wand, Private Wealth Law– Massachusetts

Christiana Gianopulos, Private Wealth Law– Connecticut

Gregory Hayes, Private Wealth Law– Connecticut

Leiha Macauley, Private Wealth Law– Nationwide, Private Wealth Law– Massachusetts

David Silvian, Private Wealth Law– Massachusetts

Dina Kapur Sanna, Private Wealth Law– Nationwide, Private Wealth Law– New York

Darren Wallace, Private Wealth Law– Connecticut

Warren Whitaker, Private Wealth Law– Nationwide, Private Wealth Law– New York

Stephen Ziobrowski, Private Wealth Law– Massachusetts”

See Chambers High Net Worth Guide 2017 Recognizes Eleven Day Pitney Attorneys, Day Pitney, September 20, 2017.

September 26, 2017 in Appointments and Honors, Estate Planning - Generally | Permalink | Comments (0)

Opinion 131: Representing Clients with Diminished Capacity Where The Subject of The Representation Is The Client's Diminished Capacity

Colorado11The Colorado Bar Association recently released Formal Ethics Opinion 131. An abstract of the opinion is below:

This opinion addresses the representation of clients where the subject of the representation is an adult protective proceeding (guardianship and conservatorship). It also encompasses ethical issues when the lawyer is acting as a guardian ad /item in an adult protective proceeding or when the lawyer represents an allegedly incapacitated person. While lawyers are appointed as guardians ad /item in the majority of adult protective proceedings, non-lawyers may also be appointed.

The Colorado Bar Association (CBA) has issued a separate formal ethics opinion that addresses representing clients with diminished capacity where the presence of diminished capacity is incidental to the lawyer's representation.  See CBA Formal Op.126, "Representing the Adult Client With Diminished Capacity" (2015). This opinion does not cover representation of individuals who are minors or who may have a mental incapacity in addition to their incapacity due to their minority.

September 26, 2017 in Estate Planning - Generally, Guardianship, Professional Responsibility | Permalink | Comments (0)

MetLife Stuck Between Wife and Girlfriend in Benefit Battle

161020102345-metlife-retires-snoopy-540x304A federal judge, in Metro. Life Ins. Co. v. Teixeira, refused to allow Metropolitan Life Insurance Company to remove itself from a litigation triangle between the company and a decedent’s wife and girlfriend. Metlife filed with the court in 2016 anticipating the court would make the determination as to whether the company owed the wife or the girlfriend $40,000 from the decedent’s life insurance policy. The decedent-insured named his wife as the beneficiary of the policy over the phone. Later, he changed the beneficiary to his girlfriend via another phone call. This was in violation of Metlife’s own policies requiring beneficiary designations to be done in writing. Part of the cause for the judge’s refusal to dismiss Metlife stemmed from the company’s atypical handling of the situation that leaves it open to liability for negligence.

See Jacklyn Wille, MetLife Stuck Between Wife and Girlfriend in Benefit Battle, BNA Convergence, September 11, 2017.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

September 26, 2017 in Current Events, Estate Planning - Generally, New Cases, Non-Probate Assets | Permalink | Comments (0)

Article on The Texas Revised Uniform Fiduciary Access to Digital Assets Act: A Primer for Estate Planners

59602861511475746741_YqNfYocymAGerry W. Beyer recently posted an Article entitled, The Texas Revised Uniform Fiduciary Access to Digital Assets Act: A Primer for Estate Planners, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Prudent professionals must address digital assets in all estates they plan or administer. The 2017 Texas Legislature enacted the Texas Revised Uniform Fiduciary Access to Digital Assets Act as Chapter 2001 of the Estates Code which adds clarity to the steps you need to take when planning and administering estates. This article aims to provide the information you need to be well-informed about the cyberspace-estate planning interface.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

September 26, 2017 in Articles, Estate Administration, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Monday, September 25, 2017

New Laws Address Access To Clients' Online Accounts After They Die

Digital-assets-online-accountsThe passage and signing of Uniform Fiduciary Access to Digital Assets Act makes New Jersey the 24th state to enact laws affecting the final disposition of an individual’s digital assets. Under the new law, fiduciaries have the same powers to manage digital property as they do tangible property. This applies to estate executors, trustees, court-appointed guardians, and agents granted power of attorney. The ability to handle these assets may entail a duty to handle the assets and attorneys and fiduciaries should be on the alert for clients with digital property.

See Christopher Robbins, New Laws Address Access To Clients' Online Accounts After They Die, Financial Advisor, September 15, 2017.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) & Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

September 25, 2017 in Current Events, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

CLE on Advanced Family Law

0000000 CLEThe National Business Institute is holding a conference entitled, Advanced Family Law, which will take place on Thursday, September 28, 2017, at the Holiday Inn Princeton in Princeton, NJ. Provided below is a description of the event:

Program Description

Skillfully handle the most challenging family law cases!

Family law is growing increasingly more complex. The potential complications of high-wealth or high-conflict divorce can intimidate some attorneys into shying away from such cases. Do you have the skills to step up to the plate? We've compiled the most confounding and involved issues you're likely to encounter in your practice and put our attorney faculty to the task of demonstrating how to successfully tackle them. Gain from their collective experience - enroll today and sharpen your professional edge!

  • Explore the most difficult areas of family law practice and get solutions from seasoned attorney faculty.
  • Protect the rights of cohabitating couples and clarify the boundaries of such protection in the eyes of the law.
  • Get the latest updates on paternity law in recent court decisions.
  • Protect the victim: stop effects of domestic violence from upsetting the balance of power in divorce proceedings.
  • Effectively dispute false allegations of abuse to help your client fight for custody.
  • Obtain the best settlement for your client by conquering the division of complex assets.
  • Suspect the opposing spouse is hiding assets? Learn how to track them down and include them in the settlement.
  • Get tips on effectively arguing for and against contempt orders.
  • Get new tactics for enforcement, modification and termination of child support and spousal maintenance.
  • Make the best use of forensic accountants and valuation experts to ensure all assets are on deck at the time of settlement.
  • Help clients think ahead: find out how divorce affects estate plans and what new provisions must be made.
  • Safeguard clients from allegations of financial misconduct with timely advice on the consequences of their spending.
  • Understand the unique nuances that arise when helping military clients through a divorce.

Who Should Attend

This advanced level program will benefit:

  • Attorneys
  • Paralegals
  • Guardians Ad Litem and Other Child Representatives
  • Social Workers
  • Counselors

Course Content

  1. Non-Traditional Family Structures and Paternity Disputes
  2. Navigating Complex Asset Cases
  3. Effectively Arguing Contempt Issues
  4. Advanced Child and Spousal Support Issues
  5. Special Issues in Military Divorce
  6. Death and Divorce - Estate Planning Considerations
  7. Ethics
  8. Violence in the Home

Continuing Education Credit

Continuing Legal Education

Credit Hrs State 
CLE 8.00 -  NJ*
CLE 8.00 -  NY*
CLE 6.50 -  PA*

* denotes specialty credits

September 25, 2017 in Conferences & CLE, Estate Planning - Generally | Permalink | Comments (0)