Wills, Trusts & Estates Prof Blog

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

Saturday, March 6, 2021

Article: Legislating Supported Decision-Making

Nina A. Kohn recently published an article entitled, Legislating Supported Decision-Making, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

Supported decision-making is a process by which individuals who might otherwise be unable to make their own decisions do so with help from others. It has the potential to transform the lives of individuals with cognitive and intellectual disabilities by enabling them to function as legal actors, and not merely legal subjects. Fueled by this promise, by mounting concerns about guardianship, and by rhetoric surrounding the Convention on the Rights of Persons with Disabilities, states are rapidly adopting statutes that purport to enable and promote supported decision-making and advance the rights of persons with disabilities. This article shows how these statutes typically do neither. Rather, the statutes limit the rights of individuals with disabilities and place them at increased risk of exploitation. The article further shows that the wide gap between the concept of supported decision-making and its actual implementation in state legislation is the result of a confluence of political agendas, but that an alternative, person-centered approach is essential if supported decision-making is actually to empower individuals with disabilities. Finally, it outlines five concrete legislative approaches states could adopt—separately or in combination—to encourage supported decision-making that will actually advance the rights of persons with disabilities and reduce restrictive guardianships.

March 6, 2021 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, New Legislation | Permalink | Comments (0)

Thursday, March 4, 2021

Disabled Recipients of Stimulus Aid Are Urged to Save Some in Special Accounts

DisabledPeople with disabilities are being encouraged to put away some of their stimulus aid in special accounts in order to keep their funds safe. 

These special accounts are called Achieving a Better Life Experience (ABLE) accounts. These types of special savings accounts were introduced in 2016 as a vehicle for people with disabilities to achieve "greater financial security and more independence." 

By using ABLE accounts, disabled people "can save money in the tax-favored accounts without risking the loss of need-based government benefits, like health insurance or supplemental income." 

As of now, 43 states and Washington D.C. offer ABLE. Although these special accounts have been around for a few years, interest in the accounts as grown exponentially due to federal pandemic relief putting more cash in people's hands. ABLE advocates have begun to "spread the word" about the usefulness of saving some or all of stimulus check funds in these special accounts. 

Here are a few incentives, or benefits, of taking advantage of ABLE accounts by placing stimulus aid funds in them. 

  • People with disabilities often struggle financially and rely on federal aid, and cannot qualify for Medicaid or Supplemental Security Income if they have more than $2,000 in savings or other assets. These accounts help low-income disable people avoid this detriment. 

 

  • Stimulus payments are not considered income, meaning you can spend the money how you please. However, if the money isn't spent within 12 months, it will be counted against asset limits and could disqualify disabled people from benefits. If this money is deposited in an ABLE account, it will not be considered when counting toward the $2,000 cap. 

 

  • Disabled people can also used the ABLE accounts to save towards an apartment or a wheelchair-accessible car, not to mention many other necessities. 

In general, despite the low popularity of ABLE accounts in the last few years, they are becoming more and more useful, especially during the pandemic. 

See Ann Carns, Disabled Recipients of Stimulus Aid Are Urged to Save Some in Special Accounts, N.Y. Times, February 26, 2021. 

Special thanks to Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention. 

March 4, 2021 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Sunday, December 27, 2020

Walt Disney's grandson heir demands 'biased' California judge is fired for denying his $200 million inheritance and falsely claiming he has Down syndrome

DisneyWalt Disney's grandson has alleged that a California judge wrongly denied him his $200 million inheritance by falsely claiming he has Down syndrome. Walt Disney's grandson has been involved in a long and intense legal battle in attempts to prove that he is mentally capable. 

"Bradford Lund, 50, asked the state's judicial watchdog to remove LA County Superior Court Judge David Cowan, for an alleged ethics violation during a probate hearing of the cartoon king's will, claiming: 'He's unsuited to be a judge'" 

Bradford and his stepmother claim that Judge Cowan showed bias by siding with "hostile trustees." Last year, Judge Cowan allegedly stated in open court, "'Do I want to give 200 million dollars effectively to someone who may suffer from Down syndrome? The answer is no.'" 

Walt Disney started his cartoon studio in 1923 and it eventually became an empire that is estimated to be worth $130 billion today. 

Disney died in 1966, just a few years before his grandchildren were born. Disney left around $1.2 billion to his daughters and their heirs. 

The family feud began after Bradford and his twin sister's mother Sharon died in 1993. Sharon left her portion of Disney to the twins when they turn 35 so long as three appointed trustees deem them mentally capable. 

Bradford's attorney has claimed that Judge Cowan is unsuited to be a judge has he has previously shown 'bias' and 'personal animus.'

See Walt Disney's grandson heir demands 'biased' California judge is fired for denying his $200 million inheritance and falsely claiming he has Down syndrome, Daily Mail (U.K.), December 18, 2020. 

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

December 27, 2020 in Current Events, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Television | Permalink | Comments (0)

Tuesday, December 8, 2020

Article: What If Your Parrot Outlives You? Preparing for Your Bird’s Future

Gerry W. Beyer recently published an article entitled, What If Your Parrot Outlives You? Preparing for Your Bird’s Future, Wills, Trusts, & Estates Law journal (2020). Provided below is the abstract to the Article. Parrot

Dogs, cats, parrots, and other pet animals play significant roles in the lives of many individuals. The bond between a pet owner and his or her companion is strong. It is of vital importance to include pets when a pet owner makes plans for disability and death. This article provides an overview of the techniques a pet owner should consider when planning his or her estate with emphasis on parrots.

December 8, 2020 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, November 25, 2020

How Covid-19 Will Change Aging and Retirement

Estate planningThe most recent Fall wave of COVID-19 continues to destroy lives and communities throughout the United States. The pandemic has also affected retirement and old age and how Americans deal with and plan for these things. 

Physician and entrepreneur Bill Thomas stated, "isolation of older people has long been a problem, but Covid is focusing attention on the issue and adding urgency" to address it. With rising government deficits and falling bond yields, there is a lot of uncertainty surrounding retirement and how to fund it. Thus, many people are continuing to work for as long as possible. 

However, innovations are on the rise. Laura Carstensen, director of Stanford University's Center on Longevity stated that people will begin to "rethink retirement altogether." In the wake of Covid, there has been more emphasis on mortality, causing us to consider how we want to live in die. 

It is likely that more people will age at home. Covid has cast the spotlight on long-term care facilities, revealing "how shockingly inadequate our care infrastructure and systems are." Innovation will hopefully provide better nursing homes and more resources for people to age at home. 

Also, innovation is aimed at older people due to the pandemic and the aging population. However, Covid-related lockdowns are likely to "reduce the life expectancies of those who avoid or survive the virus." 

New innovations will hopefully cause people to work longer, value life more, save more for retirement, embrace healthier lifestyles, and plan for death. 

See Anne Tergesen, How Covid-19 Will Change Aging and Retirement, Wall Street Journal, November 15, 2020. 

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

November 25, 2020 in Current Events, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, October 30, 2020

Legal Considerations of Living Together in a Multi-Generational Home

HouseDue to COVID-19, many people have had to balance working remotely with caring for their children. That being said, many are using their homes as an office and a school, while also maintaining it as a home. 

The difficulty balancing, remote learning and homework, virtual meetings and work calls, and shopping, cooking and cleaning has created more housework. It is no surprise that wear and tear and stress levels have increased. 

Many are considering moving in with their parents or children are needing to consider the legal implications of doing so. When living with multiple generations, new considerations come into play. These considerations include,  "the burdens and the benefits of raising and teaching the children together, dividing the chores, maintaining the home, and pooling their finances together during this time of uncertainty."

Below are a  few initial questions that you should discuss with your family when considering living in a multigenerational home: 

  • Who is contributing to the purchase price?
  • Is it a gift, advance on inheritance, loan, or will they hold an ownership interest equal to their capital contribution? 
  • How do you equalize your estate to the remainder of your family?
  • What happens if a couple gets divorced?
  • Who has the right to reside in the home and how will the ownership be divided?
  • What happens if a parent must later reside in a nursing home for care?
  • Do they have sufficient assets in their name to pay for nursing care or will Medicaid look to his or her ownership interest in the home for payment?
  • If one of the owners dies, who receives his or her interest in the home?

With all of the uncertainty surrounding us, these questions are very important, and the answers even moreso. 

See Rebecca MacGregor, Legal Considerations of Living Together in a Multi-Generational Home, Bowditch & Dewey, Estate, Financial & Tax Planning Group, October 13, 2020. 

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

October 30, 2020 in Current Events, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Guardianship, Trusts, Wills | Permalink | Comments (0)

Tuesday, September 29, 2020

Celebrity Estate Planning: Misfires of the Rich and Famous III

CelebrityWe tend to look at celebrities like they are supernatural, even immortal, which is probably why we are often shocked and confused when one of our favorite celebrities pass on. The truth is, like us, celebrities are normal people and like us, they often neglect estate planning. This is the truth despite the amount of attorneys and other representatives they have on their team. 

Discussed below are a couple of celebrity stories that will hopefully teach you a useful lesson on the importance of estate planning and the risks of avoiding the issue. 

Johnny Hallyday

You may know Hallyday as the "French Elvis." Hallyday died of lung cancer in December of 2017 at the age of 74. At the time of his death, Hallyday was married to his fourth wife when he passed and had adopted children as well as natural born children. 

Hallyday died with estate planning documents that had been executed in California that left his estate to Laeticia, his fourth wife and their two children upon her death. Hallyday's natural born children opposed this estate plan in French court arguing that French law should apply to Hallyday's estate. In 2019, a French court agreed with Hallyday's natural born children, finding that forced heirship applied. 

The lesson from this story is to make sure that your client knows exactly what they want and the emotional and financial battles that can result from certain estate planning decisions. 

In a like Hallyday's where the client may be able to choose their domicile, you will want to make sure you are clear as to which law will govern the estate. 

Stan Lee

Stan Lee is one of the creative minds behind Marvel. Lee died at the age of 95 in November of 2018. Despite his fame and contribution to the world, Lee was also subject to "predators who seek to take advantage of the elderly." Lee's estate was estimated at $80 million when he died. He was only survived by a daughter. 

After Lee's wife passed on, Lee was left without stable care and security. This lead to a battle between Lee's daughter and other people that had snaked their way into Lee's life. Lee realized that he had multiple people trying to manipulate him and steal his money and was forced to send out a "cry for help" in an affidavit. Luckily, one of these aforementioned snakes was arrested following an investigation by the Los Angeles Police. 

Lee had to spend his last months on this Earth protecting himself from elder abuse. If someone would do that to Stan Lee, you can bet your bottom dollar that they would do it to you too.

 

There are many, many more celebrity stories that shed light on the importance of estate planning and the risks associated with failing to do so. For more, 

See Jessica Galligan Goldsmith et al., Celebrity Estate Planning: Misfires of the Rich and Famous III, American Bar Association: Probate and Property, September/October 2020. 

September 29, 2020 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Administration, Trusts, Wills | Permalink | Comments (0)

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)