Wills, Trusts & Estates Prof Blog

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

Thursday, April 30, 2020

Remote Notarization Law Now Available in Massachusetts

WilltestamentThe number of states that have recently passed legislation to allow remote notarization for estate planning documents during the ongoing pandemic is quickly growing. Massachusetts is number 45 with Governor Baker signing the bill into law on April 27th.

There are certain guidelines that must be followed.

  • The allowance only lasts until three days after the end of the state of emergency, which has been extended to May 18th.
  • Only attorneys and paralegals under their supervision may notarize estate planning documents: wills, trusts, durable powers of attorney, and HIPAA releases.
  • All remote notarization sessions must be recorded and the recording saved for 10 years.
  • The notary must sign a supplemental affidavit verifying a number of facts, including that the person signing the documents and all the witnesses were in the state of Massachusetts.
  • The notarization is not effective until the notary receives and compiles all original signature pages, notarizes the document, and completes supplemental affidavit.

For the immediate future this is great news, but the question remains: why is this law not permanent? Also, why do all the witnesses need to be in Massachusetts? 

See Laura Goodman & Harry S. Margolis, Remote Notarization Law Now Available in Massachusetts, Margolis.com, April 28, 2020.

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

April 30, 2020 in Current Affairs, Current Events, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0)

Saturday, April 25, 2020

CLE on Primer on Life Insurance and Basic Structuring

CLEThe Section of Real Property, Trust & Estate Law of the American Bar Association is presenting a webinar entitled, Primer on Life Insurance and Basic Structuring, on Tuesday, April 28, 2020 at 1:00 pm - 2:30 pm EST. Provided below is a description of the event.

This fundamentals program will provide an overview of commonly used life insurance products and basic structuring to give planners the tools to advise clients who own or are considering purchasing a life insurance policy.

The topics covered will include:

    • Types of insurance products
    • Suitability
    • Taxation
    • Life insurance trusts in general
    • Considerations for life insurance trust trustees

Speaker include:

    • Bruce Tannahill, Mass Mutual, Phoenix, AZ
    • Melisa Seyhun, Merrill Lynch, Chicago, IL

April 25, 2020 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Income Tax, Trusts | Permalink | Comments (0)

Monday, April 20, 2020

Don’t Give Your Adult Kids Your House

HouseGifting a house outright to an adult child or adding them to the property's deed may avoid the hassle of probate, but doing so may bring along its own slew of issues. These problems range from a potentially large tax bill to the house being in danger if the child files for bankruptcy.

Sometimes parents transfer a home to their child to try to qualify for Medicaid, the government program that pays health care and nursing home bills for the indigent. But gifts or transfers made within five years of applying for Medicaid can lead to a penalty period when seniors are disqualified from receiving benefits.

If an adult child is gifted a house through inheritance or a will, they will also get a "step-up in tax basis." Meaning the value of the house upon the conveyance will not be based on the date they acquired it, but rather when the previous owner acquired it. Kenneth Robinson of Rocky River, Ohio had a client that received his mother's house as a gift - against his advice - prior to the mother's death. The mother purchased the house in 1976 for $16,000, but the son acquired the property with a market value of $200,000 with a tax bill of $32,000 because of the $184,000 gain.

However, Section 2036 of the Internal Revenue Code says that if the mother retained a “life interest” in the property, which includes the right to continue living there, the home would remain in her estate rather than be considered a completed gift. There are specific rules for what constitutes a life interest, including the power to determine what happens to the house and liability for its bills. The executor of the person would then file gift tax return on the deceased's behalf to show that the recipient was given a remainder interest, or the right to inherit at the person's death.

See Liz Weston, Don’t Give Your Adult Kids Your House, Nerd Wallet, April 3, 2020.

April 20, 2020 in Current Affairs, Disability Planning - Property Management, Estate Planning - Generally, Gift Tax, Income Tax, Wills | Permalink | Comments (0)

Sunday, April 19, 2020

CLE on Electronic Wills: Recent Developments, State Legislation, the New Uniform Electronic Wills Act, and More

CLEThe American Law Institute is holding a webcast entitled, Electronic Wills: Recent Developments, State Legislation, the New Uniform Electronic Wills Act, and More, on Monday, April 20, 2020 at 1:00 - 2:00 pm Eastern. Provided below is a summary of the event.

Why You Should Attend

The “electronic wills” movement has become a hot topic in recent years and continues to stir debate while gaining cautious acceptance. Further, the Uniform Electronic Wills Act was recently approved by Uniform Law Commission and is now ready for consideration by the states. What is meant the term electronic will? What are the reasons behind this movement and what are the controversial elements associated with electronic wills?

What You Will Learn

Electronic wills are gaining wider acceptance as more states permit wills and other estate planning documents to be signed entirely electronically. Join us for a 60-minute webcast to find out the latest developments involving electronic wills, and the opportunities and risks associated with signing estate planning documents electronically.

Our faculty have been closely involved in the electronic wills movement for years and will discuss:

- Fundamental Elements of Will Statutes

- Factual Scenarios from Actual Electronic Will Cases

- Types of Electronic Wills

- Legal, Technological, and Market Factors Influencing the Electronic Wills Movement

- Legislative Activity in the United States

- The Uniform Electronic Wills Act

- How States are Responding to Proposed Legislation

- Perspectives on the Impact of Electronic Wills Movement on Professional Practices


All registrants will receive a set of downloadable course materials to accompany the program.

Who Should Attend
Estate planning and financial planning professionals will benefit from our experienced panelists’ insights as to where the law may be headed and how the electronic wills movement might impact their professional practice.

April 19, 2020 in Conferences & CLE, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Friday, April 17, 2020

If Not Now, When? New Legislation Simplifies Estate Planning in the Time of Coronavirus

ElecNew Jersey has now joined many other states that have enacted laws to allow for digital or remote notarization of estate planning documents during the COVID-19 pandemic. Governor Murphy has signed legislation that was sought by the legal bar to allow real estate closing, estate planning, and other legal transactions to move forward while maintaining social distancing through electronic communications.

A will does not require a notary but does require two witnesses in New Jersey, but to make it a self-proving a notary is required, which means that the will can be admitted to probate without the witnesses needing to be tracked down to attest to the signing. Health care directives require either a notary or two witnesses, although it is standard procedure to have both. Powers of attorney must be notarized. Now neither the witnesses nor the notary have to remain six feet away, but rather can witness remotely through Facetime, Zoom, or any other video application.

See Shana Siegel, If Not Now, When? New Legislation Simplifies Estate Planning in the Time of Coronavirus, National Law Review, April 15, 2020.

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

April 17, 2020 in Current Affairs, Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0)

Thursday, March 26, 2020

Americans are Rushing to Make Online Wills with 143% Uptake During Coronavirus Outbreak - But Lawyers Warn Some Might be Invalid

WillAs of Wednesday, March 26, 2020, there have been 823 deaths linked to the novel coronavirus in the United States and over 60,000 confirmed cases. Spreading faster than the virus itself may be people's realization of their mortality, as many Americans are rushing to their computers to make digital wills.

Online will company Gentreo told CNBC they have seen a 143% week on week increase in business; Trust & Will has seen a 50% rise. Around 40% of Americans are thought to currently have wills place. Attorney Alain Roman, who assists with estate planning, said "Seeing in the news that so many people are passing away worldwide and here in the U.S., people are getting a little scared. It’s getting them thinking about having a plan in place in case something happens to them."

But legal experts have a warning for those signing wills online: be wary of their legality. Leslie Tayne, founder of Tayne Law Group, said the digital document will only be valid if it "meets all of the legal requirements of your state." Tayne added that "since the vast majority of DIY wills are created and executed without any oversight from an attorney, a larger number of wills (may not be) executed in compliance with the proper will formalities, and that could end up making the will invalid."

See Lauren Fruen, Americans are Rushing to Make Online Wills with 143% Uptake During Coronavirus Outbreak - But Lawyers Warn Some Might be Invalid, Daily Mail, March 25, 2020.

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

March 26, 2020 in Current Affairs, Current Events, Disability Planning - Property Management, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Wednesday, March 25, 2020

CLE on Medicaid: Qualifying Clients for Immediate Care and Protecting Assets

CLEThe National Business Institute is holding a webcast entitled, Medicaid: Qualifying Clients for Immediate Care and Protecting Assets, on Friday, April 17, 2020 at Central: 9:00 AM - 4:00 PM. Provided below is the description of the event.

Program Description

Helping Clients Secure Nursing Home Coverage Without Destroying Family Assets

Medicaid planning is most effective when done ahead of time. Sadly, most clients seek help when the need for nursing home is urgent or when the loved one is already in the facility. Do you have all the tools at your disposal for tackling such tough cases? This practical guide zeroes in on the very techniques that work in the crisis situations - when the penalty period is already triggered or care is already being provided. Learn what asset transfer approaches are still available and how to make certain to protect family assets. Help clients make the best of a tough situation. Register today!

    • Clarify what types of asset transfers will NOT trigger penalty periods of ineligibility.
    • Get all the tools you need to provide for the spouse staying in the community.
    • Draft caregiver agreements that are sure to qualify for Medicaid compensation.
    • Learn what can still be done with an adverse Medicaid decision.
    • Protect the family home with techniques tailored to specific family dynamics and circumstances.

Who Should Attend

This Medicaid planning guide is designed for attorneys. It will also benefit nursing home administrators, accountants, geriatric care managers, care coordinators, social workers and paralegals.

Course Content

    • What Happens in an Emergency Medical Situation
    • Asset Purchase and Transfer Strategies
    • How to Transfer a Residence
    • Using Promissory Notes to Help Clients Currently in the Nursing Home
    • Life Care Contracts Between Parents and Children
    • Contesting Denial of Benefits, Penalty Period Dates and Other Adverse Medicaid Decisions
    • Providing for the Community Spouse
    • Legal Ethics in Medicaid Practice
    • Emergency Medicaid for Non-Qualified Non-Citizens and Undocumented Individuals

March 25, 2020 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Thursday, March 19, 2020

Coronavirus Trusts? Suddenly Estate Planning More Popular Than Stockpiling Food as Advisors Arrange Wills and Trusts for Elderly Clients

CovidThe global pandemic of COVID-19 has numerous people thinking a question they have refused to face - what if? But now that they are, they are now also facing their own mortality, and realizing that they do not have the basic estate planning documents.

To protect yourself and your loved ones, now's a good time to make sure that you have the following four documents prepared and updated.

  • A will or revocable trust.
    • Many people choose a trust for the passage of assets to loved ones at death without the need for probate, but others can choose a will, especially those that have modest estates.
  • Beneficiary designations on financial accounts.
    • Many assets do not pass through a will or trust, such as an IRA, 401(k) account, or life insurance policy, and instead the proceeds go to the person you name as beneficiary of that account.
  • Healthcare durable power of attorney.
    • A durable power of attorney for healthcare will give the person you designate as your agent the ability to make the medical decisions you specify on your behalf. Check with your healthcare provider to see what they prefer to see in a healthcare power of attorney to ensure a smooth transition if you become incompetent.
  • Financial durable power of attorney.
    •  In the chance that you become incompetent, financial responsibilities continue. You can tailor your financial power of attorney as narrowly or broadly as you want, ranging from simply being able to pay bills on your behalf to making major changes to your investment portfolio.

See Roland McMillian, Coronavirus Trusts? Suddenly Estate Planning More Popular Than Stockpiling Food as Advisors Arrange Wills and Trusts for Elderly Clients, Wealth Advisor, March 17, 2020.

Special thanks to Jerry Cooper (Wealth Advisor) for bringing this article to my attention.

March 19, 2020 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

CLE on Financial Exploitation of the Elderly: Estate Plan Strategies to Protect You and Your Client

CLEThe American Law Institute is holding a webcast entitled, Financial Exploitation of the Elderly: Estate Plan Strategies to Protect You and Your Client, on Wednesday, March 25, 2020 at 1:00 – 2:30 pm Eastern. Provided below is a description of the event.

Why You Should Attend

Financial exploitation of vulnerable adults is not a new phenomenon. Exploitation of and by prominent celebrities such as Brooke Astor, Anna Nicole Smith, and Stan Lee has shined a spotlight on financial exploitation, bringing it increased attention among practitioners, lawmakers, and Congress. Sadly, this kind of exploitation is not going away. In fact, its prevalence will likely increase because perpetrators are becoming more sophisticated, leveraging technological advances to exploit their victims. Prepare yourself and protect your client with an estate plan that hopes for the best in people but insulates you both from the worst in people. You will learn how to do this and more with the teachings in this webcast.

What You Will Learn

During this webcast, our expert faculty will talk about the planning instruments that will protect your client from financial exploitation, provide you with ethically permissible mechanisms to stop and reverse financial exploitation, without compromising your relationship with your client. Topics of discussion include:

    • Congressional efforts on elder abuse, including funding of state Adult Protective Services (APS), amendments to the Older Americans Act (OAA), and effects of the 2018 federal budget on available services
    • Understanding and identifying victim profiles
    • Discussion of typical scam scenarios
    • More sophisticated exploitation vehicles: power of attorney abuses, mortgage scams, and home maintenance sources
    • Spotting your clients’ indicators of financial exploitation
    • The engagement letter: Identifying the client and taking direction from the client under Model Rule 1.2
    • Prevention planning: disability planning, benchmarking capacity periodically to comply with Model Rule 1.14, and permissible disclosures under Model Rule 1.6 when incapacity is suspected
    • Handling financial exploitation in the absence of a power of attorney or health directive
    • Using guardianships and conservatorships and important considerations under the Uniform Adult Guardianship Protective Proceedings Jurisdiction Act (UAGPPJA)

Who Should Attend

Estate planners, elder lawyers, and general practitioners who handle the affairs of the elderly will benefit from this ALI CLE webcast.

March 19, 2020 in Conferences & CLE, Current Affairs, Disability Planning - Property Management, Elder Law, Guardianship, Professional Responsibility | Permalink | Comments (0)

Monday, March 16, 2020

CLE on Building Asset Protection into Estate Plans

CLEThe National Business Institute is holding a webcast entitled, Building Asset Protection into Estate Plans, on Monday, April 6, 2020 from 9:00 AM - 4:00 PM Central. Provided below is description of the event.

Program Description

Effective and Compliant Ways to Shore up Creditor Protections

Guarding clients and their estates against creditors is a deep-rooted part of estate planning. Do you have all the knowledge and skills at your disposal to prevent frivolous creditor attacks and minimize asset vulnerabilities? This practical legal guide explores the most effective techniques available to trusts and estates practitioners today. Register today!

    • Accurately assess specific assets', income sources' and beneficiaries' risk of exposure.
    • Explore simple ways to protect clients from the biggest threats.
    • Learn how to use trusts and LLCs to strengthen creditor protections and build in flexibility.
    • Maximize the use of exempt assets to boost protections.
    • Understand what techniques work even after the death of the grantor.
    • Protect your professional reputation with a legal ethics guide tailored to the demands of the trusts and estates practice.

Who Should Attend

This legal guide is designed for attorneys. It will also benefit accountants, tax professionals, trust officers and paralegals.

    • Course Content
    • Tax Rules Overview and Updates
    • Identifying Vulnerabilities and Common Mistakes That Expose Assets to Creditors
    • Simple Methods of Guarding Assets
    • Trusts in Wealth Preservation - Not Only for the Ultra-Rich
    • Using LLCs and Limited Partnerships
    • Timing of Asset Protection Efforts: Preventing Fraudulent Transfers and Other Considerations
    • Asset Protection Issues in Estate Administration
    • Legal Ethics

March 16, 2020 in Conferences & CLE, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)