Wills, Trusts & Estates Prof Blog

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

Thursday, September 26, 2019

Why Estate Planning is not Just for the Wealthy and Elderly

EstateplanningSociety focuses on youth and being young, and as such many people hesitate to contemplate their mortality. At the same time and for the same reason people incorrectly assume that estate planning is only for the elderly and those that have acquired all the their possible wealth.

Not all documents in an estate plan are to prepare for your death; powers of attorney are documents that protect you in times of incapacity. There are two forms of these documents: healthcare and financial, and both of them allow a designated agent the power to make decisions pertaining to whichever document it is. 

If you have minor children, your death will affect them more than if they were older. To provide for them financially and legally, a guardian should be designated to take over the role of parent if something should happen to you. Without a guardian designation, your most precious assets could go to a family member or someone else that you would not have preferred.

If you are young and relatively healthy, term life insurance is relatively inexpensive and can for a term of 10, 20, or even 30 years. The younger you are, the less the premiums will be to start out. Group life insurance may also be available through your employer and may allow you to purchase additional coverage for you and your spouse.

See Stephanie Fierro, Why Estate Planning is not Just for the Wealthy and Elderly, Jaburgwilk.com, September 25, 2019.

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

September 26, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0)

Thursday, September 19, 2019

Britney Fans Insist it is Time to #FreeBritney!

BritneyBritney Spears, the pop princess that dominated the charts in her late teens and early twenties before her extremely public break down in 2008, is still under a conservatorship in California. This year she cancelled her Las Vegas residency and she went to a mental health facility. But her fans believe that she is being silenced and was put into the facility against her own free will, and was able to be forced because of the conservatorship with her father, Jamie, at the helm.

Conservatorships - or guardianships as they may be known in other jurisdictions - are intending to help those who cannot take care of themselves and are unlikely to gain that ability, such as the elderly or mentally disabled. Spears's father is control of her finances and many personal choices (including healthcare), but it is apparent that the musician can provide for herself. She has produced four albums since the start of her conservatorship, was a host on The X Factor, even went on four world tours. Attorney Stanton Stein, whom Jamie has hired for #FreeBritney damage control, rejected the idea that Spears had been coerced or manipulated in any way. “She’s always involved in every career and business decision,” he said. “Period.” There have been no more public outbursts, break downs, or suicide attempts.

So why is there still a conservatorship in place? Her fans believe that she is being micromanaged and manipulated to the point of being under complete control of her father. What really gave the rally cry #FreeBritney fire, however, was a voicemail left on a podcast that dissects Britney's Instagram posts. The caller, identifying himself as a former paralegal for an attorney who worked with Spears’ conservatorship, claimed that the singer’s father was involved in getting her to drop her Las Vegas residency. He also made a series of other allegations and raised concerns about her personal autonomy.

In the meantime, Jamie Spears has requested that the conservatorship be extended to more states, including where his daughter lives to vacation, and his suing individuals with slander over the many accusations.

See Laura Newberry, Britney Spears Hasn’t Fully Controlled Her Life for Years. Fans Insist it’s Time to #FreeBritney, Los Angeles Times, September 18, 2019.

Special thanks to Adam T. Uszynski (Bradicich, Moore & Uszynski, LLP, Victoria, Texas) for bringing this article to my attention

September 19, 2019 in Current Events, Estate Planning - Generally, Guardianship, Music, Television, Travel | Permalink | Comments (0)

Wednesday, August 7, 2019

Article on Estate Planning Highlights of the 2019 Texas Legislature

TexasGerry W. Beyer recently published an Article entitled, Estate Planning Highlights of the 2019 Texas Legislature, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This article reviews the highlights of the legislation enacted by the 2019 Texas Legislature relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters.

August 7, 2019 in Articles, Current Affairs, Current Events, Elder Law, Estate Administration, Estate Planning - Generally, Guardianship, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Wednesday, July 24, 2019

Article on You Settled it, Right? Family Settlement Agreements in Probate, Trust, and Guardianship Disputes

TexastechJ. Ellen Bennett, Mark R. Caldwell, & Donovan Campbell, Jr. recently Article entitled, You Settled it, Right? Family Settlement Agreements in Probate, Trust, and Guardianship Disputes, 11 Tex. Tech Est. Plan. Com. Prop. LJ, 213-254 (2019). Provided below is an introduction to the Article.

In practice, very few cases proceed to trial. Statistically, most disputes are settled (usually through mediation). Probate, trust, and guardianship disputes are no exception. These cases are frequently resolved by utilizing what is known as the family settlement doctrine and entering a family settlement agreement (FSA). Despite the frequency with which these cases settle, drafting effective probate, trust, or guardianship FSAs can be more complicated than anticipated. For a variety of reasons, these FSAs can be both substantively and procedurally tricky. This article highlights some of the common procedural issues the practitioner may frequently encounter in the three key phases of entering a probate, trust, or guardianship FSA: (1) formation; (2) exchanging consideration; and (3) enforcement.

The complexity of probate, trust, and guardianship settlements is driven by a variety of factors. First, it can be challenging to identify all of the necessary parties who must sign a probate, guardianship, or trust settlement as compared to those who should, but are not required, to sign it. This analysis is usually at the forefront of the minds of the parties, who want to finally resolve their dispute and eliminate the possibility for someone to later challenge it or claim that the settlement is not binding on them. Even after all of the necessary parties are identified, however, settling parties who are serving as fiduciaries must be mindful to fulfill their disclosure duties to the appropriate persons before entering a settlement. Additionally, in a typical probate, trust, or guardianship dispute, there are frequently parties, such as administrators, guardians, or attorneys ad litem, who require court authority to enter a settlement or to fulfill its terms. Thus, unlike other areas of the law, a probate, trust, or guardianship settlement may--even after all the parties have signed it--be subject to additional conditions precedent before the parties are actually required to perform their contractual obligations in earnest. Additionally, depending on the terms of the FSA, any later court order may be limited to merely approving the FSA, or the court may adopt and incorporate the FSA into the order, thereby making it the judgment of the court. These different acts significantly impact the parties' options to enforce the FSA.

These unique dynamics present complexities that many settling parties (and their counsel) do not anticipate when drafting the FSA. As with most contracts, the devil can be in the details. Careful attention should be given to expressly stating what happens if things do not go as planned (e.g., when a necessary party ends up not signing the FSA or the parties fail to secure court approval of the FSA) and knowing the applicable law in default.

July 24, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0)

Monday, July 22, 2019

Note on Baby Got Back? Enforcing Guardianship in International Surrogacy Agreements When Tragedy Strikes

SurrogacyChelsea E. Caldwell recently published a Note entitled, Baby Got Back? Enforcing Guardianship in International Surrogacy Agreements When Tragedy Strikes, 49 U. Mem. L. Rev. 848-882 (2019). Provided below is an introduction to the Note.

R.H. and her husband M.H., Italian citizens, have tried for eight years to conceive a child - utilizing every avenue of fertility services available to them in Italy, to no avail. Her doctor advises R.H. that it is unlikely she will ever be able to carry a child of her own and that adoption is the only option in Italy for the couple to expand their family. Not ready to give up yet, R.H. contacts a surrogacy agency located in the United States. After timely consultations, the couple is matched with surrogate mother C.E., who lives in Chicago. R.H. and M.H. fly to Chicago several times to complete a cycle of In Vitro Fertilization ("IVF"), creating several viable embryos. To the couples' long-awaited success, surrogate mother C.E. becomes pregnant after the embryo transfer. Nine months go by swiftly and R.H. and M.H. board a flight to Chicago for the birth of their son, S. Unfortunately, their plane crashes, leaving no survivors. The couple indicated in their International Surrogacy Agreement ("ISA") with surrogate mother C.E. that R.H.'s sister in Italy would be the appointed guardian should something happen to them. However, that agreement was drafted and completed in the United States. Italy does not recognize such contracts and, in fact, forbids them. What happens to stateless baby S?

International parents, like R.H. and M.H., come to the United States from foreign destinations where surrogacy is illegal or against public policy in their country of origin; they contract with surrogates in the United States to carry out their pregnancies, fulfilling their dreams of parentage to have a child of their own. The surrogacy agreement, however, is often the easiest part in this situation - international intended parent(s) ("international intended parents") must circumvent their countries' laws not only to carry out the surrogacy agreement but also to successfully establish legal parentage and desired citizenship of the child in their country of origin once the child is born.

Within this delicate situation comes the need for intended parents to address estate planning, specifically considering the possibility of a tragedy befalling them while their child is in utero with a surrogate in the United States. Currently, there is a disconnect in the estate planning realm, even domestically between American intended parents and American surrogates; most patients rely on inadequate consent forms provided by fertility clinics. The legal issues are more complex when considering cross-border surrogacy arrangements and international intended parents who face restrictive and conflicting laws regarding surrogacy.

With rapid medical advances in the Assisted Reproductive Technology ("ART") field and progressive hesitancy in foreign countries toward surrogacy, complexities resulting from prevalent cross-border surrogacy arrangements are sure to only increase, which is this Note's broad focus. Part II of this Note provides a brief introduction to international surrogacy: tracing the history of surrogacy's prevalence beginning in the United States to its expansion across borders and how estate planning is significant in this area. Part III delves further into surrogacy in an international context, offering a comparative view of surrogacy laws in different countries and some resulting, notable but common examples of challenges international intended parents face to establish parentage and citizenship in their country of origin. Thereafter, Part IV circles back to the main issue of estate planning for guardianship purposes and analyzes possible protections and future outlooks on existing international conventions: the Washington Convention and the Hague Convention. Finally, Part V presents a proposed standard of international comity, and Part VI concludes. Taken together, this Note hopes to bring greater clarity to the doctrinal tensions one finds in the contemporary law of international surrogacy.

July 22, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship, Science, Technology, Travel | Permalink | Comments (0)

Thursday, June 27, 2019

Britney Spears' Father Sues Free Britney Blogger for Defamation Over Conservatorship Comments

BritneyA creator of a blog devoted to the theory that singer Britney Spears, 37, is being controlled by her father and appointed conservator, Jamie Spears, 66, has now been sued by Jamie. The singer's father became her conservator (referred to as guardian in other jurisdictions) after her highly public mental breakdown in 2008.

Anthony Elia, the man behind the Absolute Britney blog, may have to explain certain comments that he made about Jamie Spears. The lawsuit claims that Elia made false and malicious claims that Jamie and his conservatorship controlled Britney's Instagram account to make her seem less stable and more in need of psychiatric help than she actually is. The blog has also strongly influenced the #FreeBritney movement, which questions why Jamie still has a conservatorship over Britney, despite the progress she has made in her mental health over the last 11 years. A conservator is usually only appointed for the severally debilitated, whether mentally or physically, or a person in their minority.

The pop singer has not commented publicly on her conservatorship, but did request to speak to the judge in her case at a closed hearing in May. The judge subsequently ordered a court review of Britney's situation before another hearing, currently scheduled for September.

See Jessica Sager, Britney Spears' Father Sues Free Britney Blogger for Defamation Over Conservatorship Comments, Fox News, June 27, 2019.

June 27, 2019 in Current Events, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, Music | Permalink | Comments (0)

Tuesday, June 11, 2019

Mary Max, Wife of Peter Max, is Found Dead of an Apparent Suicide

PetermaxA friend of Mary Max, 52, the wife of artist Peter Max, found her body Sunday inside the couple's 15th floor apartment on Manhattan's Upper West Side on Riverside Drive near West 84th Street. The cause of death is an apparent suicide of nitrogen asphyxiation. Mary and her stepson, Adam, had been steeped in legal turmoil revolving around the failing health of 81-year-old Peter and his artwork.

Peter has an advanced state of dementia, and his mental state has steadily declined in recent years. Adam had sued Mary in 2015 claiming that she was trying to kill his father to gain control over his multi-million dollar art collection. Mary asked then asked the court to appoint a guardian to oversee her husband's business after Adam and three business associates took over the artist's studio, increasing production and profit through a series of art auctions on cruise ships. After the appointment of the guardian, Adam removed his father from his home and moved him around New York for more than a month, to which Mary accused him of "kidnapping" Peter and withholding his whereabouts from her.

A judge ordered Peter to be returned to Mary's care at their Manhattan apartment and that a guardian oversee both his business and personal affairs. Peter's daughter who lives in Los Angeles, Libra, took over her father's studio in January and filed a lawsuit to stop her brother from being able to interact with the company.

See Bridie Pearson-Jones and Ariel Zilber, Mary Max, Wife of Peter Max, is Found Dead of an Apparent Suicide, Daily Mail, June 11, 2019.

June 11, 2019 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Guardianship, New Cases | Permalink | Comments (0)

Tuesday, April 30, 2019

Article on La protección jurídica de las personas mayores: un reto para el siglo XXI (The Legal Protection of Elder People: A Challenge for the 21st Century)

ElderlawM.C. García Garnica published an Article entitled, La protección jurídica de las personas mayores: un reto para el siglo XXI (The Legal Protection of Elder People: A Challenge for the 21st Century), Elder Law eJournal (2018). Provided below is an abstract of the Article.

The 21st century is facing a phenomenon of population aging unprecedented in the history of humanity. This is a positive phenomenon in a first approach. However, various international organizations warn us of the growing vulnerability of elder people, as a collective particularly exposed to situations of discrimination, social exclusion, poverty and abuse both personally and economically. Therefore, it is a challenge for legal systems to provide an adequate legal response to the needs of the elderly, from the perspective of safeguarding their autonomy, their dignity and their fundamental rights. In view of this, the present work aims to reflect on this reality, claiming a necessary legislative intervention in the matter.

April 30, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Sunday, March 31, 2019

Article on Decision and Persuasion: Re-Conceiving the Role of the Planner Where Undue Influence is Suspected

ActecJames C. Milton and Katheleen R. Guzman recently Article entitled, Decision and Persuasion: Re-Conceiving the Role of the Planner Where Undue Influence is Suspected, ACTEC Law Journal, Vol. 44, No. 1, 137 - 143 (Winter 2019). Provided below is an introduction of the Article.

Our population is aging. Blended familiar are becoming more common, complex, and multi-generational. Conservatorships have increased, along with the incidence of elder and financial abuse claims. While financial abuse is nothing new, modern sociocultural and familiar dynamics have compelled renewed legislative attention where profound decisional control is granted to proxies over the property of those they are supposed to protect. Often, that trust is misplaced. As these data converge and interact, the growth curve in undue influence claims will continue to accelerate, along with attendant and alter estate planning strategies. The world is rapidly changing, and it appears that there is "no turning back."

Into this context comes a timely piece exploring leading edge research over the effect that recent psychological and neuroscientific discoveries might hold for planning and litigation. In Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion, Dominic Campisi, Evan Winet, and Jake Calvert reveal the under-appreciate role that the sub- or unconscious mind plays with complex decision making, and the presumably equally underdeveloped "psychology of percussion" that influencers might wield in search of a desired outcome. As Campisi el al. make clear, an integrated understanding of both should feature prominently or those wishing to avoid, press, or defend an undue influence claim, particularly give the exacerbating effects of age and cognitive decline upon tendencies toward triggered decision making. It takes but a quick look at such undue influence factor as "susceptibility to influence" to see why. How might the law respond?

March 31, 2019 in Articles, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship, Science | Permalink | Comments (0)

Friday, March 29, 2019

Allegations Of Abuse Marred Stan Lee’s Last Years — A Guardianship Might Have Protected Him

GuardianshipStan Lee was the beloved grandfather icon of many in the comic book and pop culture realms, and his death last November at the age of 95 saddened millions. But his legacy, unfortunately, was marred in the last years of his life by accusations of elder abuse and financial mismanagement by those closest to him. The idea that the people that should have been protecting the creator of so many heroes was actually taking advantage of him shocked the world.

But this is not an isolated incident, as there are many more people that are aging into their 90's and suffering for mental and health issues, and thus more vulnerable to others. Those a carefully constructed estate plan can protect assets after death, it does not always help them while they are still living. This is where a guardianship can aid the elderly. Though it is the most restrictive means of providing for the care of an individual with mental incapacities, it provides more protection than a power of attorney or other alternatives.

Guardians are appointed by and monitored by the court and are subject to court oversight and various court reporting requirements. Powers of attorney only report to a principal, and thus financial abuse can continue for years without anyone else being aware. According to the Senate Aging Committee, an estimated 1.3 million adults are under the care of guardians, either family members or professional guardians. Late last year, the Senate Aging Committee issued a report recommending ways to improve the guardianship program, including enhanced monitoring, criminal background checks of guardians, and improved training of newly appointed guardians.

See Cozen O'Connor, Allegations Of Abuse Marred Stan Lee’s Last Years — A Guardianship Might Have Protected Him, Lexology, March 13, 2019.

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

March 29, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)