Wills, Trusts & Estates Prof Blog

Happy Halloween

Many law school classes have one or more holidays which are especially relevant.  For example, Family Law has Valentine's Day, Mother's Day, and Father's Day, Labor Law has Labor Day, Environmental Law has Earth Day, Military Law has Memorial Day, and Law and Religion has Christmas, Hanukkah, Ramadan, etc.

Halloween, with its fascination with death, may be the most relevant holiday to those of us interested in wills, trusts, estates, probate, and estate planning.

So, however you celebrate, have fun and be safe!

Jeffrey Epstein's Autopsy More Consistent with Homicidal Strangulation than Suicide, Doctor Says

Dr. Michael Baden, a former New York City medical examiner who has worked on high-profile cases during a five-decade medical career including Aaron Hernandez and Martin Luther King Jr., has said that disgraced financier Jeffrey Epstein's autopsy is consistent with homicide. The forensic pathologic made the announcement during an interview with Fox & Friends on Wednesday.

Baden was hired by Epstein's brother after it was officially determined that Epstein had killed himself in his jail cell. The doctor noted that the 66-year-old Epstein had two fractures on the left and right sides of his larynx, specifically the thyroid cartilage or Adam’s apple, as well as one fracture on the left hyoid bone above the Adam’s apple. He said those fractures are "extremely unusual in suicidal hangings" but "much more common in homicidal strangulations." He said during his 50 year career he has never seen those fractures personally in a suicidal hanging.

Baden's results are not conclusive, however, he also added that Epstein had hemorrhages in his eyes that were common in homicidal strangulation and uncommon, though not unheard of, in suicidal hangings. He also said the ligature, or the instrument used to strangle or hang a person, should be tested to see if there is any other person's DNA on it.

New York City Medical Examiner Barbara Sampson ruled Epstein’s cause of death to be a suicide by hanging and is standing by her findings.

See Melissa Leon, Jeffrey Epstein's Autopsy More Consistent with Homicidal Strangulation than Suicide, Dr. Michael Baden Reveals, Fox News, October 30, 2019.

CLE on Shielding Estate Plans Against Litigation Webinar: Proactive Steps to Take Now

The Peak Trust Company is presenting a webinar entitled, Shielding Estate Plans Against Litigation Webinar: Proactive Steps to Take Now, on Tuesday, November 12, 2019, from 2:00 p.m. to 3:00 p.m. Provided below is a description of the event.

Litigation relating to estate planning seems to be increasing all over the country, and it is not limited to large estates. Proactive steps can be taken now to drastically reduce the chances of your clients' wishes being challenged. Some of the topics we will cover include:

- Reducing the chances a disgruntled beneficiary will attack your client's estate plan

- Increasing the chances that the estate plan will be successfully defended using discretionary trusts, no-contest clauses, and conditional distributions

- Common litigation scenarios and how to avoid them

- Anticipating challenges based on dementia, lack of mental capacity, and undue influence

- Dealing with beneficiaries’ spouses and divorces

- Protecting against mismanagement by trustees and trust advisors

- Using statements of intent and overcoming adverse presumptions

Preplanning for Medicaid Benefits - a Critical Step in Caregiving [Tennessee]

In Chattanooga, Tennessee, the cost of skilled care for chronic conditions such as Alzheimer's disease within a nursing home can run as high as $7,000 to $10,000 per month. If these numbers are seem daunting, one should start preplanning now for the possibility of turning to government benefits such as Medicaid.

The path towards Medicaid eligibility for long-term care is no walk in the park; regulation changes and clarifications, application forms, modernization of online portals, and other issues can be major pitfalls for any client. Here are some tips on how to navigate the path:

• Learn about the basic benefits, resource limits, eligibility criteria, and evidence requirements at your state's government website
• Gather important asset information (Medicaid has the right to know about the last five years, known as the look-back period)
• If your assets or income exceed Medicaid's allowance, research appropriate ways to "spend down" without giving assets away or attempting to hide assets - make sure to only take advice from knowledgeable sources
• Be aware that the most common reason for a denial of benefits is insufficient evidence

See Sally Brewer, Preplanning for Medicaid Benefits - a Critical Step in Caregiving, Chambliss Law, October 4, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Article on Why Can’t My Brother-In-Law Bob Be the Executor of My Estate?

Stuart C. Bear recently published an Article entitled, Why Can’t My Brother-In-Law Bob Be the Executor of My Estate?, Wealth Strategies Journal, October 14, 2019. Provided below is the abstract to the Article.

Fiduciary selection is crucial to the success of an estate and disability plan. Even a great plan can go awry if a fiduciary fails to uphold his or her fiduciary duties or fails to follow the terms of the Will or Trust. Add family dynamics to an already stressful situation and things go from bad to worse.

Native Hawaiian Heiress Faces Court Test to Control Millions

93-year-old Abigail Kawananakoa is considered a princess of Hawaii by the natives because she is descended from the family that ruled the islands before the kingdom was overthrown, but she inherited for $215 million fortune by being the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of Hawaii's largest landowners. She suffered a stroke in 2017 and since then has fought over control of her trust.

Kawananakoa married her 63-year-old partner of 20 years, Veronica Gail Worth, shortly after the stroke. She also attempted to fire her longtime attorney, Jim Wright, after he argued that she was incapacitated due to the medical incident became her trustee. He also helped her with the $100 million foundation she created in 2001 for Hawaiians. Attorneys for the foundation filed petitions for a guardianship for Kawananakoa, claiming her wife is manipulating her.

Kawananakoa watched the hearing seated next to her wife, with the couple's little chihuahua on her lap. The judge ruled that the there will be an evidentiary hearing to determine whether there should be a conservator for the heiress, and that she is required to undergo a medical examination before the hearing.

See Andrew Court, Native Hawaiian Heiress Faces Court Test to Control Millions, Daily Mail, October 25, 2019.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

Article on Emerging Issues for the Family Office

Randy Abeles recently published an Article entitled, Emerging Issues for the Family Office, Wealth Strategies Journal, September 20, 2019. Provided below is the abstract to the Article.

Family offices come in all shapes and sizes and the differences from one to another can be vast. And, yet family offices have common challenges—and opportunities—especially in today’s dynamic business environment. From addressing the complexities of taxation to tackling the risks of cyberthreats, many family offices are wrangling with shared issues. In this article, Randy Abeles, tax partner, RSM US LLP, discusses five of these emerging concerns and possible steps to address each.

Beware of Dormant Creditor Claims in California Probate Cases

In 2013, a man in California by the name of Richard Holdaway passed away. Almost a year later, Patricia Everett filed a petition in San Bernardino County Superior Court to probate his estate and she also filed a creditor’s claim seeking $90,875. However, she did not pursue the petition, and the court dismissed it "without prejudice." A few months later, she refiled another probate petition under the same cause number, but Richard's son also filed a petition, claiming he was named executor in his father's will. The son's petition was granted, and he rejected Everett's creditor claim. 2 months after the executor's rejection, on May 19, 2017, she filed a complaint against him in the amount of her original creditor's claim, Estate of Holdaway.

The trial court agreed with the son, who argued that under California Code of Civil Procedure section 366.2, claims against a decedent must be filed within a year of the decedent’s death, and therefore dismissed the claim. However, the appellate court reversed, finding that the claim was in fact dormant. When Everett's original probate petition was dismissed, the court did not reject her claim as a creditor, so the tolling of the claim continued until an executor eventually rejected, allowed, or approved it. Everett then timely filed a complaint to pursue the claim.

The case was one of first impression, and can be a lesson for creditors as well as estate beneficiaries. If a creditor initiated a probate proceeding, there may be a viable creditor’s claim on file with the court and years could elapse before the creditor comes forward to try to collect on that claim.

See Jeffrey S. Galvin, Beware of Dormant Creditor Claims in California Probate Cases, Trust on Trial, October 21, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Article on The Practice of Law or Not the Practice of Law, That is the Question

Virginia H. Grigg recently published an Article entitled, The Practice of Law or Not the Practice of Law, That is the Question, Wealth Strategies Journal (2019). Provided below is introduction to the Article.

As attorneys, we do not have to worry about engaging in the unauthorized practice of law (UPL) because we are licensed to practice law in our given jurisdictions. However, we have office staff and we are responsible to ensure that they do not engage in the unauthorized practice of law. We also have clients that may come to us asking in what activities they may engage and not run afoul of the UPL rules. The purpose of UPL rules and enforcement is to protect the public against legal services being provided by unqualified individuals. However, there is a justice gap in the US and states are looking for ways to provide quality legal services to more of their residents at an affordable cost. Many jurisdictions are now licensing individuals who are not lawyers but serve clients in a quasi-lawyer position. We are also seeing a rise in the do-it-yourself legal industry and state bars must determine whether the providing of legal forms constitutes the practice of law in their jurisdictions.

How Much Inheritance Is Too Much?

There is a mindset among many that those with wealthy parents have no need to study hard, as success will be simply handed to them. On the reverse side, financially-set parents have a fear that their children will become complacent and dependent upon them, so will not become beneficial citizens to society.

In early adulthood people forge a part of their identity that stays with them. Parents and grandparents worry that if that generation of descendants acquire a vast amount of wealth, it with quash their desire to work. There is no specific study on this subject, especially since it is not that sympathetic of a view point, but many financial consultants say that an inheritance is not necessarily a worth-ethic destroyer. In fact, most of them are not extravagant, with 85% coming in at less than $85,000 and the majority under $50,000. But for some, there may be a valid fear: A wealth-management consultancy called the Spectrem Group recently estimated that about 1.4 million American households have $5 million to $25 million to their name, and another 173,000 hold wealth in excess of $25 million.

The resonating quote from Warren Buffet provides some insight into the question of how much to give to children and grandchildren: “A very rich person should leave his kids enough to do anything but not enough to do nothing.” Some families, such as that of Scott Nash, the founder of the East Coast grocery chain Mom’s Organic Market, want their children to believe nothing is coming their way. He wants them to make their own way, and then provide for them to maintain a "good" lifestyle.

See Joe Pinsker, How Much Inheritance Is Too Much?, The Atlantic, October 25, 2019.

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