Wills, Trusts & Estates Prof Blog

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

Thursday, April 9, 2020

The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic

DigitalGovernor Andrew Cuomo has signed various executive orders to address the issues faced by the state of New York and its residents during these unprecedented times as the country deals with the COVID-19 pandemic. On April 7, 2020, the Governor issued Executive Order 202.14 which modifies the laws concerning numerous documents pertaining to a person's estate plan.

The act of witnessing for the execution of certain instruments that is required under state laws is authorized to be performed utilizing audio-video technology. Those instruments include:

  • Last will and testament 
  • Lifetime trust
  • Statutory gifts rider to a statutory short form power of attorney
  • Real property instruments
  • Health care proxies
  • Instrument to direct the disposition of a person’s remains upon their death

See Cheryl L. Erato, The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic, nyestatelitigationblog.com, March 8, 2020.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) and Ira Bloom (Justice David Josiah Brewer Distinguished Professor of Law, Albany Law School) for bringing this article to my attention.

April 9, 2020 in Current Affairs, Current Events, Death Event Planning, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Trusts, Wills | Permalink | Comments (0)

Tuesday, April 7, 2020

D.C. Proposes Electronic Will Statute

Covid2In response to the COVID-19 pandemic and its astounding affects on the economy and the daily lives of American citizens, the Washington D.C. legislature proposed the COVID-19 Response Supplemental Emergency Amendment Act of 2020 yesterday. Today, an amendment was added to allow its citizens to create wills electronically when "the Mayor has declared a public health emergency."

To read the amendment, see here.

April 7, 2020 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)

Thursday, April 2, 2020

Prince’s Family Claims That They Have Not Received Any Payments From His Estate; They Are Now Asking a Judge To Intervene

PrinceThree of the six siblings of the late singer Prince are claiming that they have not received anything from the estate, though they are his legal heirs. Despite this, lawyers and advisers of the estate have been paid. Sharon, Norrine, and John Nelson, three of the singer's siblings, have filed a petition for compensation in Prince’s estate.

The estate is run by Comerica Bank and the two parties have not agreed on many terms in the past. The siblings have accused Comerica of mismanaging money and leaving them out of the loop concerning major decisions regarding the estate. Comerica has denied these allegations. The three siblings say they want to continue helping out the estate but cannot continue without being compensated. The three siblings claim they have had to heavily depend on “solely on their pension, social security, personal savings and loans from friends to cover the costs needed to support the Prince Estate despite the millions paid to advisors, attorneys and others approved by the Court.”

A judge has yet to rule on the case.

See Gibson Precious, Prince’s Family Claims That They Have Not Received Any Payments From His Estate; They Are Now Asking a Judge To Intervene, Baller Alert, March 28, 2020.

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

April 2, 2020 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, Music, New Cases | Permalink | Comments (0)

Saturday, March 28, 2020

CLE on Adult Guardianships: How to Bring and Defend an Action

CLEThe American Law Institute is holding a webcast entitled, Adult Guardianships: How to Bring and Defend an Action, Tuesday, April 28, 2020 from 12:00 to 1:30 PM Eastern. Provided below is a description of the event.

Why You Should Attend

Guardianship is a valuable tool for enabling one person to make decisions on behalf of someone incapacitated or disabled. The potential need to establish adult guardianships may be more in demand in the future as the baby boomer generation continues to age and individuals with developmental disabilities reach adulthood.

In just 90 minutes, this webcast provides a valuable opportunity to learn the essentials of adult guardianship practice, including how these cases are brought and the various factors that practitioners need to take into account when bringing or defending a guardianship action.

What You Will Learn

Taught by experienced estate planners and ACTEC Fellows, this webcast explores the essential aspects of an adult guardianship, including:

    • Whether a guardianship is necessary
    • Full plenary vs. limited guardianship
    • How the initial pleadings might vary depending on whether it appears that the guardianship action will be unopposed or contested
    • The role of the court appointed attorney and how counsel should deal with the court appointed attorney
    • When a guardian ad litem should be requested and what standards the court should use in determining whether to appoint one
    • How the role of the guardian ad litem differs from the role of the court appointed attorney
    • The evidentiary standard for proving that an alleged incapacitated person lacks capacity
    • What factors the court takes into account when choosing the person to serve as guardian
    • Pros and cons of having a professional guardian serve as opposed to a family member or friend of the incapacitated person
    • Abuses in the guardianship system

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

 

Who Should Attend

Estate planners and those practicing in elder law will benefit from this CLE on adult guardianships jointly offered by ALI CLE and ACTEC.

March 28, 2020 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Ford Heirs Lose Battle to Oust Mother’s Allegedly Abusive Caregiver

DurossThe heirs to Henry Ford II - the eldest grandson of legendary Henry Ford - filed a legal challenge against their late patriarch's attorney, Frank Chopin, who is now the champion of Ford's widow, Kathleen DuRoss Ford, 80. They claimed that the man tried to control their access to her and, abused her by “[forcing] pills down her throat.” Chopin, who has power of attorney over the widow's affair, denies the allegations.

On Wednesday, a Palm Beach judge denied their request to have Chopin removed as her caregiver, and leaving her daughters, grandchildren and even her sister, Sharon, 82, distraught. Tara DuRoss, a 23-year-old granddaughter of Ford's, claimed Chopin had limited them to scheduled conference calls and meetings away from her home, and now the calls had stopped. “I used to call her every day. We just want to be able … to see her.”

Chopin remarked that it is untrue that Tara spoke to Kathleen daily. He called her an “idiot child,” and said the family were “estranged” unless “they wanted something.”

See Oli Coleman, Ford Heirs Lose Battle to Oust Mother’s Allegedly Abusive Caregiver, Page Six, March 26, 2020.

Special thanks to Reid Weisbord (Professor of Law and Judge Norma L. Shapiro Scholar, Rutgers Law) for bringing this article to my attention.

March 28, 2020 in Current Events, Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Wednesday, March 25, 2020

Daniel Craig Says he Doesn't Plan to Leave his Fortune to his Kids: 'Get Rid of it or Give it Away Before you Go'

CraigDaniel Craig, the actor currently portraying the popular fictional character James Bond, recently said in an interview that he is not planning any of his $100 million to his children. He has an infant daughter, born in 2018, with actress wife Rachel Weisz, as well as older daughter Ella, who is in her 20s, from his previous marriage. He is also stepfather to Weisz’s 13-year-old son Henry.

Craig is far from the first celebrity to announce that he does not want to raise his children to depend on their parents for money. Elton John, along with his husband David Furnish, said in 2016 that they would be giving the bulk of their estates to charity rather than to their two sons. Simon Cowell, told the Mirror back in 2013 that he’s “going to leave my money to somebody. A charity, probably — kids and dogs. I don’t believe in passing on from one generation to another."

The next James Bond movie, No Time to Die, originally scheduled for release in April, but now delayed until November.

See Daniel Craig Says he Doesn't Plan to Leave his Fortune to his Kids: 'Get Rid of it or Give it Away Before you Go', Wealth Advisor, March 24, 2020.

March 25, 2020 in Current Events, Estate Administration, Estate Planning - Generally, Film | Permalink | Comments (0)

Article on How Should Non-Probate Transfers Matter in Intestacy?

IntestacyMary Louise Fellows and E. Gary Spitko recently published an Article entitled, How Should Non-Probate Transfers Matter in Intestacy?, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.

As American family structures have become more heterogeneous, status-based intestacy statutes have become less suited to promoting donative intent. Indeed, numerous scholars of wealth transfer law have noted the critical need for intestacy law reform to address the needs of decedents whose donative intent does not comport with traditional family norms. We propose addressing this concern by looking to intestate decedents’ non-probate transfers, such as a revocable trust, life insurance policy, 401(k) account, brokerage account, or joint tenancy with right of survivorship deed. In 2010, we, along with a co-author, published the first study to consider the relationship between donative intent with respect to the probate estate and donative intent as expressed in non-probate transfers. That study utilized a factorial research design to assess public attitudes and offered support for our new heir hypothesis, that, depending on the identity of the non-probate transfer beneficiary and the identity of the existing heir, a decedent would want a non-probate transfer beneficiary who is not otherwise an heir to be treated as an heir. The instant two-part study of estate planners produces additional knowledge about how best to integrate non-probate transfers into intestacy statutes. In the first part of our study, we conducted a paper survey of forty-five estate planners. The responses to this survey greatly influenced the second part of our study in which we conducted in-person or telephone interviews with nineteen estate planners. The findings reported in this study provide the framework for statutory reform. This study demonstrates that the new heir reform increases the likelihood of promoting intestates’ donative intent in a growing number of twenty-first century familial situations. 

March 25, 2020 in Articles, Estate Administration, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Trusts | Permalink | Comments (0)

Tuesday, March 24, 2020

How to Use Exemption Now: Checklist for Spousal Lifetime Access Trusts (SLATs)

MoneyspouseUnder current law, the gift, estate, and generation skipping transfer tax (GST) exemption is $11,580,000, and double that amount for married couples. There are numerous reasons to utilize some or all of that amount now, especially since the exemption is temporary - it is set to lower back to pre-TCJA amounts in 2026. If there is a shift in administration in Washington before that, it could lower sooner.

Setting up trusts can be beneficial for using the tax exemption now and for protecting assets for future generations. But it may be prudent to place the property in a trust that benefit not only your children but also name yourself as a beneficiary so that you not completely cut off from the funds should the need arise for them. If you are married, you can set up a trust that names your spouse as a beneficiary. That way your spouse can access assets transferred as a beneficiary and you do not lose the ability to benefit from the wealth you accumulated. These trusts are sometimes called Spousal Lifetime Access Trusts or “SLATs.”

For those that are not married, the alternative is a domestic asset protection trust, or DAPT. 19 states allow these self-settle trusts, and generally people from those states agree that the trusts serve their intended purpose. If you create this type of trust in a non-DAPT state, be aware of that in many jurisdictions, a self-settled trust is void as to the settlor's creditors.

See Martin Shenkman, How to Use Exemption Now: Checklist for Spousal Lifetime Access Trusts (SLATs), Forbes, March 22, 2020.

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

March 24, 2020 in Current Affairs, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Income Tax, New Legislation, Trusts | Permalink | Comments (0)

Saturday, March 21, 2020

Vanessa Bryant Files to Add Infant Daughter to Kobe's Trust

KobesuitKobe Bryant had set up a trust before his untimely death to provide for his widow, Vanessa, and their daughters, one of which perished alongside him in a helicopter crash in January. The trust was created in 2003 and amended several times, the last in 2017. The couple's most recent child, Capri, was born in 2019. Vanessa has filed to amend the problem, requesting that the infant daughter be added to the trust.

The trust agreement is reportedly set up to allow Vanessa and her daughters to draw from the principal and income during Vanessa’s lifetime, with the remainder going to the children upon Vanessa’s death. The widow is arguing that according to the trust document, Kobe's intent was to provide for all their children. The other two surviving children of the couple are Natalia, 16, and Bianka, 2.

Vanessa has also filed a lawsuit against the helicopter company that owned the vehicle in which her husband and daughter died and has demanded the deletion of reported graphic photos taken and distributed by deputies through her lawyer.

See Jack Baer, Report: Vanessa Bryant Files to Add Infant Daughter to Kobe's Trust, Yahoo Sports, March 19, 2020; see also Ralph R. Ortega, Kobe Bryant's Widow Seeks to Amend His Trust to Include Daughter Capri, Daily Mail, March 18, 2020.

Special thanks to Jim Hartnett, Jr. (Dallas, Texas Probate Attorney) and Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing these articles to my attention.

March 21, 2020 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Sports, Trusts | Permalink | Comments (1)

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)