Wills, Trusts & Estates Prof Blog

CLE on The Probate Process from Start to Finish

The National Business Institute is holding a conference entitled, The Probate Process from Start to Finish, on Wednesday, June 5, 2019 from 8:30 AM - 4:40 PM at the Hilton Garden Inn San Antonio Airport in San Antonio, Texas. Provided below is a description of the event.

Program Description

Handling Probate from Initial Notices through the Estate Closing

This "a through z" guide to probate is designed to take you from the first days of the estate timeline through all the steps of marshaling and valuing estate assets, locating and paying the creditors, paying the beneficiaries, and laying the estate to rest. You will receive the latest updates on the probate court procedure and tax laws, practical guidance from experienced probate attorneys on using spousal elective share and resolving estate disputes, and sample forms and checklists to speed up the administration process. Build a solid foundation for your probate practice - register today!

• Learn the procedure, rules and practical steps to effectively administer a probate.
• Determine what form of administration is appropriate for a specific probate case.
• Clarify the order of inheritance for an estate when there is no will.
• Locate assets and obtain ownership documents more easily with a list of local and online resources.
• Get a complete view of the sequence of events that must happen before the estate can be closed.
• Identify common actions that trigger malpractice liability and get tips for staying in the clear.
• Get practical advice for honoring or contesting all claims against the estate.
• Find new ways to resolve liquidity issues that delay estate closing and final distributions and payments.
• Learn what common closing mistakes can allow the estate to be re-opened, and how to avoid them.

Who Should Attend

This basic level seminar is designed for professionals who want to be more effective in handling the probate process, including:

• Attorneys
• Paralegals
• CPAs and Accountants
• Financial Planners and Wealth Managers
• Tax Professionals
• Trust Officers

Course Content

• Initial Filing in Probate Court and Estate Timeline
• Law of Intestate Succession
• Inventory and Appraisement
• Probate Property vs. Non-Probate Assets
• Handling Claims Against the Estate
• Tax Reporting and Post-Mortem Tax Matters
• Ethics
• Sale of Property and Distributions
• Final Accounting and Closing the Estate
• Probate Disputes and Litigation

3 Handwritten Wills Found in Aretha Franklin’s Home

Aretha Franklin died last August of pancreatic cancer at the age of 76, and both her lawyer as well as her family stated that she had no will or any type of estate plan in place. However, months after her death, not one but three handwritten wills have been discovered at her home in suburban Detroit. And they were dated - two are from 2010, found in a locked cabinet, and the last is dated 2014, found in a spiral notebook under the seat cushions of a living room couch.

Her longtime attorney, Bennett, filed the wills on Monday and claimed that he was unsure if they were valid under Michigan law. A hearing has been scheduled for June 12. A statement from the estate said two of Franklin's four sons object to the wills. The statement also expressed that a neutral administrator from the University of Michigan, Sabrina Owens, will continue to serve as the administrator.

Kecalf Franklin has filed a separate petition, claiming that Aretha Franklin wanted him to serve as representative of the estate in the 2014 will. He is objecting to plans to sell a piece of land next to his mother’s Oakland County home for $325,000 to pay off a debt to the Internal Revenue Service. The IRS filed a claim back in December, asserting that the diva's estate owed $6 million in back taxes.

See Ed White, 3 Handwritten Wills Found in Aretha Franklin’s Home, Associated Press, May 20, 2019.

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

Special thanks to Jim Hartnett, Jr. (Dallas, Texas Probate Attorney) for bringing this article to my attention.

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

Comment on Illegitimate Succession: Vestigial Discrimination in Wyoming’s Rules of Intestate Descent

Allison Strube Learned recently published a Comment entitled, Illegitimate Succession: Vestigial Discrimination in Wyoming’s Rules of Intestate Descent, 19 Wyo. L. Rev. 119-148 (2019). Provided below is an introduction to the Comment.

Although the first child is free, any person who becomes the biological parent of a second nonmarital child within the state of Mississippi is guilty of a misdemeanor punishable by a $250.00 fine and up to ninety days imprisonment. Indeed, until the state amended its “crimes against public morals and decency” in 2004, Mississippi required its state health department to report the names and addresses of every person “listed on birth certificates of illegitimate children” to every district attorney in the state. In Tennessee, county officials may indenture nonmarital children into servitude if it “satisfactorily” appears their mother “disregards their moral and mental culture, and either keeps or lives in a house of ill fame.” So long as it seems it would better the child’s condition, Tennessee counties can “bind out illegitimate children,” as apprentices even if the mother otherwise provides her children with sufficient clothing and food.

Notwithstanding these rather extreme exceptions, modern statutory schemes generally disfavor laws that create legal distinctions based on the marital status of a person’s parents, especially laws that deny rights to nonmarital children or perpetuate the stigma associated with the legal status of “illegitimacy.” This sentiment, however, represents a substantial evolution in social views that effected changes to important areas of law. Although Wyoming law reflects some of the legislative trends related to the rights of nonmarital children, the state’s laws of intestate succession continue to distinguish between marital and nonmarital children. Wyoming Statute § 2-4-102, entitled “Rule of descent; illegitimate person,” provides the “rule of descent of all property, real and personal, of any illegitimate person dying intestate” in Wyoming. Under this provision, nonmarital children are categorically precluded from distributing property to their fathers through intestate succession, even after the father establishes paternity by judicial determination.

Part II of this Comment begins with a brief history of the treatment of nonmarital children in state intestacy laws and in Wyoming’s rules of intestate descent. Part II follows with an overview of United States Supreme Court jurisprudence concerning discrimination against nonmarital children in state inheritance laws. Part II concludes with an examination of how most state legislatures have responded to these Supreme Court decisions by eliminating statutory distinctions between marital and nonmarital children, including the stigmatizing classification of “illegitimacy.” Finally, Part III challenges the propriety of Wyoming Statute § 2-4-102 in light of surrounding provisions, equal protection concerns, and current social models. Although Wyoming has eliminated the legal distinction from most of its statutes, the Wyoming State Legislature finds itself decades behind legislative and societal trends with respect to its laws of intestate succession. Accordingly, Part III argues that Wyoming should repeal § 2-4-102, which continues to label nonmarital children as “illegitimate,” both in title and in substance.

Article on Dismantling the Trusts and Estates Canon

Naomi Cahn recently published an Article entitled, Dismantling the Trusts and Estates Canon, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This article steps back and reflects on how new perspectives from gender, race, class, and sexual orientation have challenged existing trusts and estates canonical narratives on a number of different levels, both in terms of deepening trusts and estates but also expanding it—that is, challenging core concepts of the field. Part I celebrates how new perspectives have challenged the core trusts and estates canonical narratives. These new perspectives challenge basic concepts of wealth and do the following: 1) bring in alternative conceptions of wealth and of inheritance; 2) question the biases of inheritance law as they reflect conventional social norms; and 3) contextualize the whole field so that it encompasses elder law, history, sociology, socioeconomics, and other areas. The second Part turns to the structure of wealth and its intergenerational transmission, drawing on sociological and demographic data to show just who is wealthy and how wealth transmission perpetuates inequality, Finally, based on asking what I call “the wealth question,” I suggest future directions that might lead to reexamination of some of the core tenets of trusts and estates: for example, wills may not be appropriate for everyone, and class differences in families show the need to include (or be more deliberate in excluding) alternative families.

Article on Dying With or Without a Will

Nicola Peart published Article entitled, Dying With or Without a Will, Wills, Trusts, & Estates Law eJournal (2014). Provided below is the abstract of the Article.

For most people, the preparation for eventual death involves deciding what to do with their property. Should they make a will? If so, how, and on what terms? Do they have any obligations to provide for family members or friends? What if their mental capacity is diminishing? What happens if they do not make a will? This chapter will address these questions. It begins by explaining what happens to a person's assets if they die without leaving a valid will. The chapter then goes on to discuss the mental and formal requirements for making a valid will and what will-makers can do to minimize the risk of their will being challenged after their death. While the discussion applies to all will-makers, the comments on assessing testamentary capacity are of particular relevance to older people where capacity may be compromised or subsequently challenged.

Aretha Franklin's Estate to Sell Late Singer's Property to Help Pay Off her Remaining $5.3 Million Tax Debt

The estate of the Aretha Franklin, who passed away this last August from pancreatic cancer, has petitioned the court to sell a vacant block of land in Bloomfield Hills, Michigan to help pay off the singer's tax debt of $5.3 million. The land, as well as a house being built on the plot, will be placed on the market for $1.4 million.

It was also revealed last month that Franklin reported a missing check of $178,000 to Bloomfield Township police back in June 2018. The investigation of the theft remains open, and has the possibility of adding more animosity among her family and her estate. The police tracked down the check and spoke with the teller who had endorsed it at the bank, but they did not release any further details of their relationship with the singer.

The diva's estate attorney, David Bennett, claimed that she "always paid her debts" but she "did not immediately cash checks." He said in December that "She had a lot of (pay) checks lying around that she had never cashed. I had to have some of them reissued because they were so old. I don't know why she didn't cash them, but it seems that the IRS figured some of it as undeclared income and are going after it."

See Annita Katee, Aretha Franklin's Estate to Sell Late Singer's Property to Help Pay Off her Remaining $5.3 Million Tax Debt, Daily Mail, May 4, 2019.

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

Best (and Worst) States for Entering the Afterlife

As the saying goes, nothing in life is certain except for death and taxes. So what are the best and worst states for estate taxes? Though the federal exemption is $11.2 million for an individual, there are 18 states (plus the District of Columbia) in the union that also have state or inheritance taxes of their own. 6 of those 18 states have inheritance taxes, which differ from estate taxes as they apply to the heirs or beneficiaries of the decedent, and the long arm of the law reaches them even if they live outside of that state. Those states are Iowa, Kentucky, Maryland, Nebraska, New Jersey and Pennsylvania, according to Moneytips.com. Spouses, however, are exempt from inheritance taxes.

The jurisdictions that have an estate tax are Connecticut, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont, and Washington. Yes, Maryland has both estate and inheritance taxes. Rhode Island has the lowest threshold at $850,000, which means any estate worth more than that amount will be subject to the state's 16% estate tax. District of Columbia and Hawaii have the same exemption as the federal government, so any estates in those jurisdictions over $11.2 million will have to pay the 40% federal estate tax and the jurisdiction's estate tax (16% and 15.7%, respectively).

So what are the best states to die in? The other 33 states that have neither state estate taxes nor state inheritance taxes. To take advantage of the tax benefits, you will need to establish residency in that state and know the requirements to do it. Florida’s rules are quite extensive and include filing a declaration of domicile, getting a driver’s license and registering your vehicles, opening bank accounts, registering to vote, notifying tax officials, applying for the homestead exemption and updating your estate plan.

See Bryce Sanders, Best (and Worst) States for Entering the Afterlife, Accounting Web, May 1, 2019.

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

The Mystery of the Millionaire Hermit

When a person dies alone without an easily ascertainable will nor family, the public administrator of the county is dispatched to determine the individual's estate. He or she has the authority to enter the person's home (after the coroner has taken care of the body) to rummage through the person's belongings to see if they can find the next of kin, a will, or any other clue as to how to disperse what the person left on the Earth.

But when Dale Tisserand and Melani Rodrigue of Corning, California entered the two-bedroom home the recently deceased Eugene Brown on August 22, 2015, they were ready for the usual decay of a person on the edges of society. Those that pass away all alone have usually let their lives - and homes - get away from them before they themselves pass on. But to the administrators surprise, they found a neat, tidy, and sparse house and every sign that its inhabitant was strictly frugal. There were no electronics in the home except for an old-fashioned radio, and the man's room only contained a foam bedroll and a military duffel bag containing a uniform and medals.

The other bedroom was empty except for a metal filing cabinet. Within that cabinet resided the evidence that Brown had a sizeable estate of $2.7 million, but alas, they found no will, so it was the administrators' job to discover the man's intent. Tisserand and Rodrigue discovered that he had never married and had no children, and his two siblings had long passed away. He had been born in San Jose in 1922, and had kept precise details of every dollar he had made, starting when he was 18 for a Norwegian shipping company making $18 a month. He moved into his home in the 1970s, and was alone it that small house for 39 years. But he did call his investment advisor, Richard Mazur, every morning and every night for years. Upon learning of Brown death, Mazur cried so hard he had to hang up with the administrator.

But Mazur did give them one clue to the elusive, rich hermit: he was a devout Catholic. In the filing cabinet was a brochure entitled titled Making Your Will: A Good Steward’s Guide, published by Catholic Relief Services, an international aid group, and a Merrill Lynch form designating the nonprofit as the sole beneficiary of his investments. Brown filled out the form four days before his death—but had not signed it.

The only person that attended Brown's military burial - with a full-gun salute - was an assistant funeral director who also happened to live on the same street as Brown. Three nephews and a niece finally surfaced after two of them learned of their uncle's death from an heir finding firm, which will take a third of the estate awarded to their clients. One claimed that he had visited his uncle from time to time, though there is no proof of that, but the other three admit they had not seen their uncle in 50 years. Nonetheless, 2 siblings received $387,000 each and the other 2 received $193,000 each, instead of the Catholic Church which may have been Brown's intent.

See Claire Martin, The Mystery of the Millionaire Hermit, Bloomberg Businessweek, April 27, 2019.

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

Prince's Sister Sharon Nelson Accuses Comerica Bank of Mismanaging Estate: 'He Is Not Resting in Peace'

On of the six heirs of the late Prince, Sharon Nelson, claims that three years after the death of her half-brother almost nothing has been settled with his estate. She also states that the estate has had no many legal fees with the fighting between the heirs and Comerica Bank & Trust, the administrator of the artist's estate after he passed away intestate, that it is nearly bankrupt.

Nelson, who says she lives off her Social Security and pension, adds that the legal costs connected to the estate battle have become so enormous that her only option is to prepare her own motions and filings and to represent herself in court. She said that the other heirs were to dependent on Prince while he was alive, but that she worked her entire life and knew how to provide for herself. Each heir received a contractual $100,000 after a tribute concert, but have yet to have any other distribution or payment from his estate. But Comerica Bank & Trust continues to be paid $125,000 per month for the administration fees and other costs that Nelson and the other siblings believe are reckless.

The more than 2,711 court filings -- motions, affidavits, memos, depositions, schedules -- in Prince’s probate case are evidence of the complexity of administering an intestate estate. The Internal Revenue Service has also stated that no heir can receive a distribution from the musician's estate until an estimated $31 million tax bill is paid. 

A hearing on several matters has been set for May 20.

See Claudia Rosenbaum, Prince's Sister Sharon Nelson Accuses Comerica Bank of Mismanaging Estate: 'He Is Not Resting in Peace', Billboard, April 24, 2019.

Article on Rethinking Connecticut Probate

Jeffrey A. Cooper recently published an Article entitled, Rethinking Connecticut Probate, 32 Quinnipiac Prob. L.J. 10-22 (2018). Provided below is an introduction of the Article.

In the American lexicon, probate has become a dirty word. In his influential book on the subject, Norman Dacey sought to foster a nationwide nonprobate revolution, and had a few choice words for the probate system and the "viciously corrupt, greedy" lawyers and judges who ride its "gravy train." Closer to home, Connecticut's probate system has been called a "scandal," with critics calling it among the nation's worst court systems, and offering blunt advice: "try not to die in Connecticut."

Probate's poor reputation lingers despite recent meaningful reform. In 2011, a major restructuring accelerated the pace of prior reform efforts and resulted in a more centralized, efficient, and professional court system. Now, the probate courts have their own rules of practice designed to streamline proceedings, minimize unnecessary paperwork, and deter litigious behavior and destructive litigation tactics. The system is overseen by an administrative office that takes great pains to educate judges and the public, update and standardize major probate forms, and maintain a website that is comprehensive and user-friendly. In contrast to our often overburdened superior court system, the probate courts can handle cases more expeditiously and cost-effectively, and deal with complex family matters in an environment that is more approachable, less adversarial, and easier to navigate for pro se parties.

Why then do many trusts and estates lawyers routinely counsel their clients to avoid Connecticut probate? Why has a revocable living trust become the cornerstone of most sophisticated Connecticut estate plans? Why is there a continued reference to Connecticut's probate courts as a scandal, among the worst such courts in the nation?

I contend that Connecticut's probate courts have become far more desirable than their detractors would acknowledge, and far more efficient and effective than their reputation would suggest. Part of the disconnect is attributable to the fact that old reputations die slowly. At the same time, both the legislature and the courts can do more to build upon recent progress and continue to bring Connecticut's probate system into the twenty-first century. In this essay, I explore the lingering challenges facing Connecticut's probate courts, and proffer solutions that a thoughtful legislature and the courts themselves should embrace.