Wills, Trusts & Estates Prof Blog

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

Thursday, February 14, 2019

Article on Old Days are Dead and Gone: Estate Planning Must Keep its Head Above Water with the Changing Tide of Technology

TexasAlexandra M. Jones recently published a Comment entitled, Old Days are Dead and Gone: Estate Planning Must Keep its Head Above Water with the Changing Tide of Technology, 11 Tex. Tech Est. Plan. Com. Prop. L.J. 161 (2018). Provided below is an abstract of the Comment.

Fresh out of law school, many young lawyers are eager to start their legal careers and just right into the courtroom. While they still need some practical training first, many young lawyers accept jobs that deal solely with discovery or intake until they can slowly make their way up the legal food chain. With the advancement of technology, programs like expert systems and artificial technology are taking over some of these first-year associate jobs because they are less expensive and more efficient. As a result, law firms are not hiring as many recent graduates. Eventually, technical jobs could replace the classical notion of attorneys. However, the growing concern that technology is taking over jobs in the legal field is not the only problem caused by artificial intelligence. Issues arise with how much impact technology has in transactional fields, such as estate planning, and the future role that artificial intelligence will play. An even greater issue arises with who is liable for artificial intelligence mistakes when there is very little in terms of legislation.

Tech industry experts are in stark disagreement about the means of regulating artificial intelligence. Stephen Hawking and Elon Musk have warned the world of dangers of advancing artificial intelligence and that governments need to start creating laws and regulations. Experts such as Bill Gates and Mark Zuckerberg believe that creating new regulation is not realistic because the technology has not fully developed. Some critics argue that researchers are already regulated enough, and adding more regulation will stifle innovation. This comment focuses the issue on a much smaller scale by suggesting that lawyers, law firms, and other entities that utilize artificial intelligence, or its branch of expert systems, in their estate planning practice are consistent with ethical rules of conduct for the system. Additionally, this comment will expand upon the meaning of the unauthorized practice of law as it relates to artificial intelligence.

This comment proceeds in five parts. Part I introduces the concept of artificial intelligence through practical and theoretical examples and definitions. Part II discusses the impact that artificial intelligence has on expansion. Part III considers the effect artificial intelligence have on estate planning laws. Part IV discusses the parties liable for artificial intelligence. Part V suggests methods of ensuring compliance with ethical standards to estate planning practitioners as technology becomes more absorbed in transactional fields.

February 14, 2019 in Articles, Current Affairs, Current Events, Estate Planning - Generally, Malpractice, Professional Responsibility, Technology | Permalink | Comments (0)

Thursday, February 7, 2019

How Long Will Stepmom Live? And Other Vexing Estate Planning Questions For Modern Families

FamThe traditional family model (heterosexual, married, and with children) is much less prevalent in our changing society, yet the field of estate planning is slow to catch up. With more and more blended families, multiple marriages, and even artificial reproduction, estate planners and advisors need to raise new questions with their clients and offer new solutions.

The five basic questions to ask when forming a estate plan are to whom, how much, when, outright or in a trust, who will step into your shoes as agent and fiduciary. These questions are important for both traditional and contemporary families, but the latter will bring along more complex questions that will need not-so-simple answers.

Traditionally, financial wealth has descended by blood line. Non-marital partners, gestational agreements, and other form of artificial reproduction have caused several people to redefine blood lines as well as trusts that provide for those family members. If there are multiple marriages and large age gaps between children, a parent or grandparent may want to leave more to the younger of the generation as they may still be juveniles when the trustor passes away. But do not assume that you can leave less to children from a prior marriage as you believe your ex-spouse will also leave me an inheritance. This may not always be the case, so communicating your intent should ease any confusion.

See Ashlea Ebeling, How Long Will Stepmom Live? And Other Vexing Estate Planning Questions For Modern Families, Forbes, January 29, 2019.

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

February 7, 2019 in Estate Administration, Estate Planning - Generally, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Article on Technology Probate

TechLightning-paced advancements in technology are responsible for many wonderful accomplishments that span across most industries and have contributed to making day-to-day life and work easier and more streamlined. Despite such modern-day developments, technology can still cause major problems, and unexpected issues can occur in ways that were unfathomable less than 20 years ago. The breadth of general knowledge, regardless of specialty, that attorneys must possess to represent their clients is constantly expanding. One key area is how cybersecurity affects their practice and their client's information. Attorneys need to be prepared for phone calls from their clients on what to do if they are victims of a cybersecurity attack and how to take preventive measures to minimize their risk of being attacked. Attorneys also should be able to address questions from clients on what measures their firms are taking to ensure protection of their clients' information. Trusts and estates attorneys need to be especially proactive in addressing cybersecurity measures with their clients, in both estate planning and estate administration. Identity theft is one key issue, and more and more people have digitized assets in need of tracking and protection from nefarious criminals.

See Ross E. Bruch, Probate Technology, Probate & Property Magazine, Vol. 32, No. 8, November/December 2018.

February 7, 2019 in Articles, Estate Administration, Estate Planning - Generally, Professional Responsibility, Technology | Permalink | Comments (0)

Thursday, January 31, 2019

Article on Technology Tools for Real Property and Trusts and Estates Lawyers

DigitalThe integration of technology into the practice of law has been a double-edged sword for most practitioners. On one hand, technology has made some things easier and faster. On the other hand, it can generate a lot of frustration, delay, and expense. When tech began impacting our profession in the early 1990s, the conventional wisdom was for lawyers to focus on doing what only lawyers could do and let the support staff deal with the new technology tools. Of course, it has now become nearly impossible for a lawyer to do his or her job without using technology directly. To make matters worse, the technology tools change at a dizzying pace, and there is often no one around to ask for help. As a result of all of this, lawyers often feel behind the curve and wonder where they should focus their efforts to improve efficiency and profitability. Here are some ideas.

See Barron K. Henley, Technology Tools for Real Property and Trusts and Estates Lawyers, Probate & Property Magazine, Vol. 32, No. 8, November/December 2018.

January 31, 2019 in Articles, Current Affairs, Estate Planning - Generally, Professional Responsibility, Technology, Web/Tech | Permalink | Comments (0)

Tuesday, January 29, 2019

Article on Sustainable Trusts and Estates and Real Property Practices: Building a Law Firm that Will Thrive Now and in the Future

TreearrowMany lawyers are concerned with how their practices can remain relevant and profitable as the legal industry changes. There are many reasons for such concern. Although the legal industry is changing, however, it is possible to design a law firm that will sustain itself both today and in the future. To achieve a solution requires mindful attention to the current state of one's law firm and the industry as a whole. In addition to changes in the industry, changes in the workforces must be considered.

See Mary E. Vandenack, Sustainable Trusts and Estates and Real Property Practices: Building a Law Firm that Will Thrive Now and in the Future, Probate & Property Magazine, Vol. 32, No. 8, November/December 2018.

January 29, 2019 in Articles, Current Affairs, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Friday, January 18, 2019

Article on Is the Trustee-Beneficiary Relationship Necessarily Fiduciary

Trusts2Tobias Barkley published an Article entitled, Is the Trustee-Beneficiary Relationship Necessarily Fiduciary, Wills, Trusts, & Estates Law eJournal (2014). Provided below is an abstract of the Article.

This paper is about the relationship between trust law and the concept of a fiduciary. The traditional position on this relationship is that express trustees are necessarily fiduciaries. However, developments in trust drafting practice and their implicit acceptance by the courts have put the relationship between fiduciary and trustee under strain, with the result that there appears to be a divergence between the fundamental obligations of a trustee and the fundamental obligations of a fiduciary.

January 18, 2019 in Articles, Estate Administration, Estate Planning - Generally, Professional Responsibility, Travel, Trusts | 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)

Sunday, November 25, 2018

CLE on Planning Techniques for Large Estates: Your Secrets Are Safe with Me (I Think) - Protecting Privilege When Planning for Estates

CLEThe American Law Institute is holding a webcast entitled, Planning Techniques for Large Estates: Your Secrets Are Safe with Me (I Think) - Protecting Privilege When Planning for Estates, Thursday, December 20, 2018 at 12:00 p.m. - 1:00 p.m. Eastern. Provided below is a description of the event.

Why You Should Attend

Like communications between any client and attorney, communications between a client and an estate planning practitioner may be covered by the attorney-client privilege. The estate planning process entails the sharing confidential information, but clients often take the privilege for granted, without realizing that not all communications are privileged and that in certain situations, the privilege can be waived.  

What You Will Learn

Join us to learn the nuances of attorney-client privilege in estate planning practice, steps to protect your client’s confidential information, and best practices for keeping your professional reputation intact. Using fact illustrations, this webcast will explore:  

Attorney-Client Privilege: What Is It and How Does It Apply to Estate Planners? (Rule 1.6, Rule 1.1)

Work Product Doctrine: Where Does It Come Into Play?

Working With Third Parties: How Does It Impact the Privilege?

  This practical ethics session was originally presented on April 27, 2018, at the ALI CLE course, Planning Techniques for Large Estates. The discussion is relevant to practitioners handling estates of all sizes. Register now and get a front row seat at the rebroadcast!   Questions submitted during the program will be answered by email within two business days after the program. In addition, all registrants will receive a set of downloadable course materials to accompany the program.   Need this information now? Purchase the on-demand course here.  

Who Should Attend

Estate planners handling estates of all sizes will benefit from this ethics program from ALI CLE.  
Register two or more and SAVE! Register as a group for this program and save up to 50%. Click on "Group Rates" for more information. (Offer valid on new registrations in the same delivery format; discounts may not be combined.)

November 25, 2018 in Articles, Conferences & CLE, Estate Administration, Estate Planning - Generally, Estate Tax, Professional Responsibility | Permalink | Comments (0)

Monday, September 24, 2018

Podcast: Ethical Considerations in Representing Clients in Connection With Family Businesses

ACTEC_FoundationWho is the client in the context of representing clients in connection with the family business?

To learn more about this topic, listen to the latest ACTEC Trust & Estate Talk podcast with ACTEC Fellows John Rogers of Los Angeles and Lee Osborne of Roanoke, Virginia entitled Ethical Considerations in Representing Clients in Connection With Family Businesses.

September 24, 2018 in Professional Responsibility | Permalink | Comments (0)

Friday, September 21, 2018

Clients Who Lose a Spouse Require Both Empathy and Skill

Calla-liliesAccording to a new Merrill Lynch/Age Wave Study, nationwide 53% of widows did not financially prepare for when their spouse passed away. Dan Lash, a partner at Vienna, Va.-based VLP Financial Advisors, advised calculating the value of marital property within six months of a spouse’s death. “An appraisal will determine what the gain is and set a new cost basis in the event you sell the home five years later,” said Lash.

Another study from Merrill Lynch found that among widows, four-in-10 of them found widowhood as a trigger to begin working with a financial advisor. “They are in their 70s and 80s and single again for the first time in years,” said Tom Balcom, a financial advisor at 1650 Wealth Management based in Lauderdale by the Sea, Florida.

Unlike older clients that have never been married or perpetual bachelors, widows and widowers are in mourning for their loved one. “The danger is for the widow to be overwhelmed with grief and to allow finances to take a backseat, which makes decisions even tougher to deal with later,” said Lisa Margeson, head of retirement client experience and communications at Bank of America Merrill Lynch.

“Widowed clients are often unsure and scared because they don’t want to be taken advantage of,” said Cary Carbonaro, managing director of United Capital of New York and New Jersey and 2014 CFP Board Ambassador.

See Juliette Fairley, Clients Who Lose a Spouse Require Both Empathy and Skill, Financial Advisor, September 11, 2018.

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

 

September 21, 2018 in Current Affairs, Death Event Planning, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)