Wills, Trusts & Estates Prof Blog

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

Tuesday, December 11, 2018

Keeping Consumers Safe: What's Working In Your Favor?

HouseTwo major consumer safeguards came into full effect in 2015 pertaining to reverse mortgages.

In the past, when one spouse was below the minimum age requirement of 62, the solution was typically to remove that spouse from the house title. But this created problems when the borrowing spouse passed away, as without sufficient liquidity or refinancing the nonborrowing spouse may be forced to leave their home.

If the nonborrowing spouse was the spouse when the loan was closed, named as a nonborrowing spouse, and continued to occupy the property as a primary residence and maintain the usual taxes, insurance, and home upkeep, the loan balance no longer needs to be paid until after the nonborrowing spouse has also left the home. However, there is no further ability to spend from the line of credit, and any term or tenure payments stop as they are still not considered a borrower. Interest and mortgage-insurance premiums continue to accrue on any outstanding loan balance, as well.

The other  safeguard implemented in 2014 and effective in 2015 is a more detailed financial assessment for potential borrowers to ensure that they have sufficient means to pay all of the expenses for the home into retirement. Life expectancy set-asides (LESAs) can now be carved out of the line of credit to cover these expenses so the borrowers do not borrow too much from it.

See Wade Pfau, Keeping Consumers Safe: What's Working In Your Favor?, Forbes, December 5, 2018.

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

December 11, 2018 in Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, December 10, 2018

Cancer and Marital Status: Singles may get Less Aggressive Treatment than Married People

PillsThough you may have heard that married adults are more likely to survive cancer than singles, there is an aspect of that that has yet to make headlines: patients with spouses are more likely to get surgery or radiotherapy treatment.

When determining treatment, patients are often asked if they have adult children or spouses to help them cope and manage the side effects. A review of 59 studies based on the Surveillance, Epidemiology, and End Results Program (SEER), maintained by the National Cancer Institute, covering over 7.3 patients with 28 different forms of cancer showed reported significant differences in treatment rates between married and unmarried patients.

Unmarried patients were more likely to refuse, but the proportion was small. Of 278,015 unmarried patients whose physicians recommended surgery, 1,441 refused. For radiation, it was 1,055 out of 79,303. Conspicuously absent from these studies is any analysis of the physician's role in recommending treatment.

Psychiatrist Jonathan Metzl, author of "Prozac on the Couch," says doctors view stereotyping "as bad, something we're supposed to eliminate." But judgements are inherent to human nature, and even doctors are humans. "Frame the discussion in terms of what the patient actually needs, rather than focusing on whether it's provided by people in specific roles," says Susan Brown, co-director of the National Center for Family & Marriage Research. "Our whole system is built around traditional family roles, and that doesn't work for many people."

See Joan DelFattore, Cancer and Marital Status: Singles may get Less Aggressive Treatment than Married People, Chicago Tribune, December 3, 2018.

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

December 10, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Friday, November 30, 2018

CLE on Technology and Estate Planning: the Rise of the Electronic Will

CLEThe American Law Institute is holding a webcast/telephone seminar entitled, Technology and Estate Planning: the Rise of the Electronic Will, on Tuesday, February 26, 2019 at 12:00 p.m. to 1:00 p.m. Eastern. Provided below is a description of the event.

Why You Should Attend
Did you know that:

A will handwritten and witnessed on a tablet was probated in Ohio
An unwitnessed will written on a smartphone was probated in Michigan
Three states now have statutes validating electronic wills, and one of those states allows the testator and the witnesses to be in different locations

Electronic wills are here, and they're headed your way! In recognition of the proliferation of technology in our lives, more and more states are now allowing for electronic wills. Further, a proposed uniform statute on electronic wills is nearing completion, and several start-up companies are clamoring to offer electronic wills on mobile phone applications.

If you want to stay ahead of the curve in your estate planning practice, join us for this 90 minute audio webcast to understand where we are now and where we are going with electronic wills!

What You Will Learn
Three fellows of the American College of Trust and Estate Counsel – including the chair of the Uniform Law Commission’s Drafting Committee on Electronic Wills – will discuss:

Which states now validate electronic wills, and which states have draft legislation under consideration?
What is the status of the Uniform Electronic Wills Act?
What will electronic wills do to your practice, and what can you do to get ready for them?
What are the concerns with authentication, security, and storage?
Will other end-of-life planning documents, such as advance medical directives or powers of attorney for health care or finance, follow suit?

Who Should Attend
Any estate planner will benefit from learning the latest developments with electronic wills and how they will impact your practice.

November 30, 2018 in Conferences & CLE, Current Affairs, Elder Law, Estate Administration, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Thursday, November 29, 2018

Article on Elderly and Incarcerated: Preventing the Medical Deaths of Older People in Texas Prisons

PrisonErika A. Parks published an Article entitled, Elderly and Incarcerated: Preventing the Medical Deaths of Older People in Texas Prisons, 23 Tex. J. on C.L. & C.R. 145-164 (2018). Provided below is an abstract of the Article.

Between 2005 and 2015, 2,284 people over the age of 55 died in Texas prisons. All but 53 of these deaths were due to natural causes. The older population in Texas prison has been growing in both number and percentage for some time, spiking from 11.9 percent of the total in 2005 to today’s 20.3 percent, a growth trend mirrored across the United States. The large number of older people in Texas prisons causes logistical challenges for the Texas Department of Criminal Justice (TDCJ) as well as for the people in prison themselves. Older people have different challenges in prison than their younger counterparts, including mobility problems, other physical and mental disabilities, and a variety of medical issues that can lead to death. This paper explores current conditions for older people in Texas prisons and analyzes data on older people who died of natural causes in prison. Analysis indicates that a plurality of these people entered prison when they were already at least 55 years old, and the majority had been in prison for fewer than 10 years at the time of their deaths. The paper also recommends policy options to prevent these deaths, including increasing availability of medical and compassionate release, prioritizing alternatives to prison for older people who commit crimes, and establishing residential facilities to safely house older people on parole.

November 29, 2018 in Articles, Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, November 27, 2018

The Future of Aging Just Might be in Margaritaville

MargTimes are changing. The fastest growing age demographic in America is now between the ages of 85-94. People are living longer, having less children, and less immigrants are coming. The Census Bureau predicts by the year 2034, people over the age of 65 will outnumber those under 18 for the first time. This shift is evidence around the globe.

Senior citizen communities that are formed for reasons beyond religion, military, and failing health may be the secret to enjoying a person's golden years. The recently built Maragitaville in Daytona Beach, Florida, promises fun, sun, and camaraderie for those "55 and better." But it comes with a hefty $10,000 deposit and monthly expenses, which the majority of older Americans cannot afford. 30% of those 65 and older have an annual income below $23,000, according to a study by the Kaiser Family Foundation, and the least expensive house in Maragitaville is easily 10 times that.

But the change is still brewing: There are cruise ships and floating condos that cater to the wealthy; the Villages, outside of Orlando, has dozens of golf courses and feature enrichment programs; University of Arizona is developing a 20-story senior-living facility it calls “the world’s coolest dorm.” Can redesigning the physical environment where seniors live can redefine the way we experience aging itself? The mood of these facilities are vastly different. No more set times with drab cafeterias. Now there are come and go restaurants, delis, and take out joints is these communities, giving a level of freedom that was previously hidden away.

See Kim Tingley, The Future of Aging Just Might be in Margaritaville, New York Times, November 17, 2018.

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

November 27, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Music | Permalink | Comments (0)

Monday, November 26, 2018

Article on Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers

PoaNina A. Kohn published an Article entitled, Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers, Wills, Trusts, & Estates Law eJournal (2017). Provided below is an abstract of the Article.

Attorneys frequently represent clients who have a surrogate decision-maker with authority to make decisions on the matter underlying the representation. Such representations raise important questions for both attorneys and the courts in which they appear. Key questions include: From whom should the attorney take direction? With whom should the attorney communicate? If the attorney is taking direction from the surrogate decision-maker and not the principal, when should the court treat the principal as an unrepresented party?

This article provides answers to these challenging questions, thus providing both courts and attorneys with much needed guidance. Specifically, the article considers two types of surrogates: 1) agents appointed pursuant to a power of attorney for finances, and 2) guardians or conservators appointed by a court. In doing so, it seeks to inform the courts about expectations for attorney behavior so that courts can be confident that the attorneys appearing before them actually represent the persons whom they allege to represent, and can identify situations in which the attorney may be facilitating exploitation of a vulnerable person.

November 26, 2018 in Articles, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

10 Tips to Help Protect Your Spouse

Heart-made-small-hearts-vector-32804992Married couples promised to love each other until death do they part, but there is a way for you to protect your spouse even after you pass away.

  • Gather financial papers and important documents and store them in a fireproof box.
  • Make a "must call" list comprised of your accountant, lawyer, and other important numbers.
  • Keep a master list of passwords and usernames.
  • Make sure beneficiaries are up to date.
  • Check credit cards to make sure either both names or just one name are on the accounts, in line with you and your spouse's wishes.
  • Set up advance directives.
  • Designate a power of attorney.
  • Regularly review wills and trusts.
  • Discuss funeral arrangements and plans with each other.
  • Learn how bills are paid - and make sure the other spouse knows how as well so there are no late payments.

See Leslie Milk, 10 Tips to Help Protect Your Spouse, AARP, November 11, 2018.

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

November 26, 2018 in Current Events, Death Event Planning, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Thursday, November 22, 2018

Widows are Faring Better Financially

WidowWidows are finding ways to prosper and be financially independent rather than vulnerable after their husbands pass away. According to the Center for Retirement Research at Boston College in n a study published this year, 13% of widows were living beneath the Census Bureau’s official poverty threshold in 2014, down from 20% in 1994. Tthe average age of widows in 2014, the year on which the study is based on, was 67.

Alice Zulkarnain, one of three researchers behind the center’s study, said the financial climb was rooted in advances in women’s work histories and education levels. But only 2.6% of women whose spouses are still alive are below the poverty threshold, so there is still a ways to go.

“Widows are becoming more confident financially,” said Dr. a financial adviser who travels the country offering money workshops to widows. Her mission is personal: she became a widow 12 years ago, at the age of 59. “Even though I had my own business, I felt like a bag lady.”

The methods to reach financial confidence and independence is not primarily based on being guided by an expensive financial advisor. Personal finance classes held by local organizations and nonprofits, educational finance blogs, and local investments clubs all offer specified, personal benefits for widows. The three E’s — education, enjoyment and earnings — are the guiding principles, according to Buffy Tillitt-Pratt, a founding member of the famous investment club Beardstown Ladies in the 1980s.

See Tammy LaGorce, Widows are Faring Better Financially. Here's Why, New York Times, November 17, 2018.

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

November 22, 2018 in Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Sunday, November 18, 2018

Stan Lee’s Tangled Web of Estate Planning ­and How to Avoid it in Your Own Life

StanStan Lee, former Marvel Comics publisher and chairman, passed away this week at the age of 95. Lee is survived by his 68-year-old daughter J.C., who also had the challenge of handling her mother's passage this past year as well. Stand and Joan were married for almost 70 years. It is yet unknown if Lee had a trust or a will. Several celebrities have foregone estate planning documents recently, including Aretha Franklin and Prince.

Estate planning can be an emotional process, and maintaining one can be especially tricky as a person ages, especially if the person has cognitive degeneration. This was a potential concern for Lee, who first claimed that his daughter had befriended three men and that all four individuals were conspiring to take advantage of him, then rescinded the claim three days later. It is best to decide the issues of who will take care of personal and financial decisions before an elderly person declines. “Older people get less confident in what they’re doing, and they get more susceptible to being influenced by other people who may not have the best of intentions," said David Lehn, partner in the private client and tax team of Withers.

Lee admitted that in the beginning he worked with several attorneys and managers that either did not have the best intentions or were simply not trustworthy. Now, one of the greatest complications of Lee’s estate, and specifically his daughter, will be dealing with the numerous documents potentially floating around because of these past relationships. Even people without millions of dollars and a career creating iconic superheroes should prepare for the future they will and will not be in.

See Alessandra Malito, Stan Lee’s Tangled Web of Estate Planning ­and How to Avoid it in Your Own Life, Market Watch, November 17, 2018.

Special thanks to Carissa Peterson (Hrbacek Law Firm, Sugar Land, Texas) for bringing this article to my attention.

November 18, 2018 in Elder Law, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Seven Estate Planning Considerations for Blended Families

AarpBlended families are becoming increasingly common, and with that comes specific considerations. When one of the parents/step-parents pass away, it leaves both step-children and biological children depending on the remaining person to make testamentary decisions that would have been supported by both. Unfortunately, that is not always the case.

Here are seven specific tips for second (or third, fourth, etc.) marriage couples:

  1. Upon the death of the first spouse, a trust can be established for the benefit of the surviving spouse to provide them with income and perhaps principal. The spouse should not be the only trustee, and consider giving a children a bequest upon the first death.
  2. If spouses want to sign a joint trust then the trust should be drafted so that it becomes irrevocable upon the first death.
  3. As troubling as it may be on the facade, consider worst case scenarios and open a separate bank account with the children named as beneficiaries.
  4. Discuss funeral arrangements and plans with family members proactively, and sooner rather than later.
  5. Consider naming your spouse and one of your children as co-attorneys in fact.
  6. Communicate, communicate, communicate! Make sure everyone is on the same page, knows your wishes, and does not feel betrayed.
  7. Beneficiary designations trump a well drafted estate plan, so double check them.

See Meredith Murphy, Seven Estate Planning Considerations for Blended Families, Salawus, November 13, 2018.

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

November 18, 2018 in Elder Law, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)