Wills, Trusts & Estates Prof Blog

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

Wednesday, November 11, 2020

Article on Disinheritance in an Ageing Society

Antoni Vaquer recently published an article entitled, Disinheritance in an Ageing Society, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Estate planning

Disinheritance has a double meaning. In common law systems, the etymological sense prevails: disinheritance means denying someone from a share of a certain decedent’s succession.In civil law systems, disinheritance means deprivation of the compulsory share. This paper, combining both senses of disinheritance, principally analyses mechanisms that exclude relatives from the list of kin entitled to share in a succession, either because they are potential intestate heirs or because – in civil law countries and some mixed systems – they are entitled to the compulsory share. Specifically, the paper focuses on the demands of an ageing society.

November 11, 2020 in Articles, Current Events, Death Event Planning, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Saturday, November 7, 2020

Court Dismissed Appeal By Pro Se Individual Who Could Not Represent An Estate

Estate planning"In Kankonde v. Mankan, an attorney appealed he entry of an arbitration award on behalf of his clients, a doctor and his practice."

After the attorney withdrew, the wife of the deceased doctor filed an appellant's brief. The Court of appeals struck the brief and dismissed the appeal finding that a non-attorney cannot represent an estate. 

The court held that "a pro se litigant who is not an attorney cannot file pleadings on behalf of an estate or corporation..."

"In order to prosecute proceedings and make valid filings in this Court, the Estate and the Corporation must be represented by a licensed attorney. We have provided Appellants with the opportunity to obtain counsel. As of this date, Appellants remain unrepresented. Because the Estate and the Corporation have not obtained counsel despite notice from this Court via order that counsel was required, we will dismiss this appeal."

See David Fowler Johnson, Court Dismissed Appeal By Pro Se Individual Who Could Not Represent An Estate, Texas Fiduciary Litigator (Winstead), November 1, 2020. 

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

November 7, 2020 in Elder Law, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, November 3, 2020

Article on Conflicts of Laws in the Management of the Deceased’s Estate Under Cameroon Legal System

NTOKO NTONGA RENE recently published an article entitled, Conflicts of Laws in the Management of the Deceased’s Estate Under Cameroon Legal System, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Estateplanning

The law of succession is a critical aspect of the law which ensures and guarantees the rights of parties particularly upon the passing away of a person. Hence, the law of succession which is concerned with the legal consequences flowing from death on the deceased person’s property, has several issues worth looking at. However, the major worry becomes the management of the deceased’s estate especially when there arise a conflict of laws in the realization of that. That burden motivates this paper which has as aim to investigate the conflicts of laws that exist under Cameroonian legal system in relation to the management of the deceased estate. To achieve this objective, data is collected with the use of the doctrinal method and the data collected is analyzed with the use of the thematic content approach method. The ensuing result reveals the various conflicts that arise in the law when the managements of the deceased estate is concern under the Cameroon legal system.

November 3, 2020 in Articles, Current Events, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Monday, November 2, 2020

Once Meccas of Retail Therapy, Now Homes to Elder Americans

PatFive years ago, George and Pat Ritzinger left their home of fifteen years and moved to a new community. Their new home, in the Folkestone senior community in Wayzata, Minnesota, is on the site of a shopping center that was razed in 2012. 

Mr. Ritzinger said that the neighbors in their former home were "unfriendly" and that they had a tough time organizing social gatherings. Mr. Ritzinger further stated, "Watching garage doors open was the main excitement.”

Life at Folkestone is very different. The Ritzinger are in walking distance to shopping and other amenities. Also, they are close to their family.

All though businesses and shopping centers are closing, especially during the current Covid-19 pandemic, upscale retirement complexes are not the typical usage for these spaces after they are emptied out. 

The Ritzinger are also able to keep up with their hobbies in their community. For example, Mr. Ritzinger enjoys doing woodwork, so the community wood shop is an amenity that allows him to keep up with his hobby. 

This particular section of Folkestone is run by Presbyterian Homes & Services, which applied the continuing-care communities model. 

Under this approach, "The home uses the continuing-care communities model, in which residents can move to assisted living or skilled nursing care as their needs change"

Folkestone is definitely not your average "retirement Mecca", but it appears that community morale is high there. 

See John F. Wasik, Once Meccas of Retail Therapy, Now Homes to Elder Americans, N.Y. Times, October 24, 2020. 

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

November 2, 2020 in Current Events, 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)

Thursday, October 29, 2020

Chicago woman's self-written obituary goes viral for her wise advice

EstateplanningA Chicago woman wrote her own obituary in which she provided timeless advice. Due to the good advice the obituary contains and the special fact that the woman wrote it herself, it has gone viral.

Stacy Lois Oliver, died on October 4. at the age of 52. Oliver died of multiple system atrophy, a progressive neurodegenerative disorder. Her death came only two years after her diagnosis/ 

Stacy's husband, Jeff Oliver, stated that she decided to write her own obituary after she found out that there was no cure for MSA. 

Jeff Oliver told Good Morning America, "She knew the disease was going to start taking more and more of her away," and "While she had it, she decided to get her thoughts out quickly."

Inspiring words from Stacy Oliver included, “I'm not telling you what to do, but I am telling you what to do,” and “Stop worrying about your weight, go live, be, do. Smile, people don't get to feel them enough.”

Stacy encouraged people to enjoy the moment and to laugh and love in abundance. 

See Ann W. Schmidt, Chicago woman's self-written obituary goes viral for her wise advice, Fox News, October 16, 2020. 

October 29, 2020 in Elder Law, Estate Planning - Generally, Humor | Permalink | Comments (0)

Wednesday, October 28, 2020

As They Aged, They Started Businesses for People Like Them

MaryAnneMary Anne Hardy, realized that her nursing career was coming to an end, but she was not ready to retire. Hardy had heard about patient advocates, who help the elderly and their adult children "navigate the increasingly complex American health care system." 

Hardy, 65, explained, “It was a light bulb. . . I thought about my parents’ experience, and it was a motivator.” Hardy became certified as an advocate and began taking clients in 2013. 

Hardy's mother had a stroke, followed by bowel surgery and a "cascade of infections and other preventable ailments." These mishaps lead to Hardy's mother being moved from facility to facility with "little communication among medical professionals or with her." 

"Ms. Hardy is at the intersection of two long-evolving trends — the rising number of later-in-life entrepreneurs and the growth in the so-called longevity market." 

"In 2019, roughly 25 percent of new entrepreneurs were between 55 and 64, up from 15 percent 20 years earlier, according to the Ewing Marion Kauffman Foundation, a nonprofit that promotes entrepreneurship." 

Hardy believes that her age could and often does work to her advantage, as she may be more knowledgeable in helping people through the process. 

See Susan B. Garland, As They Aged, They Started Businesses for People Like Them, N.Y. Times, October 16, 2020. 

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

October 28, 2020 in Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, October 21, 2020

Dementia deaths rise during the summer of COVID, leading to concern

"Deaths from dementia during the summer of 2020 are nearly 20% higher than the number of dementia-related deaths during that time in previous years, and experts don't yet know why."

Close to $61,000 people have died from dementia, a big jump from the usual $50,000 within that period. 

It is not clear why the dementia death tolls have risen, but Robert Anderson, chief of mortality statistics at the U.S. Centers for Disease Control and Prevention, stated that isolation caused by the pandemic has changed the lives of those battling dementia. 

There is a difference between social distancing and social isolation. Social isolation "leads to a sense of disconnection from the community." Unfortunately, caregivers have been forced to limit visits due to COVID-19. "Social isolation is a risk for poor health outcomes, particularly as people age. And in the U.S., 28% of those over 65 (13.8 million) live alone."

Socially isolated people also have higher rates of dementia, heart disease, high blood pressure, depression, cognitive decline and death. 

Further, the job of a caregiver for a family member with dementia is very difficult and the burnout rate is high. The job is difficult under normal circumstances, which makes it even more difficult in the unnerving times we are in now. Caregivers are also having to socially isolate themselves too, which just adds to the burden. 

Also, the access of medical care has been limited for those with dementia. 

One way to fight this awful plague is to understand your patients health goals and do the best you can to adhere to those goals.

See Laurie Archbald-Pannone, Dementia deaths rise during the summer of COVID, leading to concern, The Conversation, October 14, 2020.

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

October 21, 2020 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, October 19, 2020

Having Dementia Doesn’t Mean You Can’t Vote

VoteEdward Kozlowski, who was born in Chicago 99 years ago, grew up on the farm. He often told his family about how his father walked across Siberia to come to America. 

Mr. Kozlowski enlisted in the Army Air Corps during World War II where he made four flights over Europe on D-Day. 

Mr. Kozlowski is a registered Republican who has voted in "virtually every election." “In my family, voting was the highest honor of citizenship,” his daughter, Judith Kozlowski, said. “You owed it to your country to vote; that was always the message.”

The right to vote and taking advantage of that right is something that is still important to Mr. Kozlowski, who is a resident of an independent living facility in Maryland. Understandably wary of exposure, Mr. Kozlowski did not want to vote in person,. With the help of his daughter, he was able to request a mail-in-ballot, despite him having dementia.

Although Mr. Kozlowski can become disoriented at times, he watches the news religiously and has tuned in for the presidential and vice-presidential debates. 

Mr. Kozlowski's daughter, Judith, read him the ballot in multiple short-sessions that spanned over several days. Mr. Kozlowski was able to tell his daughter which candidates he wanted to vote for, and that's all it takes. 

Although workers in nursing homes and assisted living facilities may believe that dementia disqualifies their citizens from voting and often refuse to assist them, it is simply not true. 

The only thing they need to be able to do, choose their candidate.

However, there are two considerations:

One: the person must express their interest in voting. If they express that they do not want to vote, the process should end there.

Two: If they are unable to read the ballot, you may help them but you cannot provide additional information or interpretation. 

See Paula Span, Having Dementia Doesn’t Mean You Can’t Vote, N.Y. Times, October 14, 2020. 

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

October 19, 2020 in Current Events, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, October 14, 2020

Healthy Life Insurance Policyowners Can Qualify for Life Settlements

ElderLife settlements are the sale of an unwanted or unaffordable life insurance policy for substantially more than the policy's cash surrender value. These settlements typically benefit seniors by "providing them with resources to help pay for health care costs, medical bills and other needs in retirement." 

Traditionally, for a policy to have value in a life settlement, the insured person would need to be in their mid-to-late 70s and have declined in health since the policy was first issued. Diabetes, heart disease, cancer, and other serious medical conditions were typically needed for the policy to be sold. 

However, now healthy seniors have an option to sell their policies in order to generate income. This income can then be used to invest in retirement plans or pay for healthcare and other future expenses. 

There are three criteria that a healthy senior need to meet in order to qualify for a life settlement:

  1. The policy must be a guaranteed universal life (GUL) policy.
  2. The insured typically must be age 75 or older.
  3. The policy’s death benefit must be at least $250,000.

If a policy owner meets these criteria and they can receive an offer without presented a medical record review or underwriting. 

This provides many benefits. For one, if policy premiums have become too expensive, seniors can receive a life settlement in order to stop paying these premiums. Also, the recent changes in estate tax laws have provided more investment opportunities that seniors can use a life settlement to take advantage of. This would give seniors more control and freedom with their assets. 

See Ted Kilkuskie, Healthy Life Insurance Policyowners Can Qualify for Life Settlements, Think Advisor, October 2, 2020. 

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

October 14, 2020 in Current Events, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Estate Tax | Permalink | Comments (0)