Wills, Trusts & Estates Prof Blog

Article on Why Can’t My Brother-In-Law Bob Be the Executor of My Estate?

Stuart C. Bear recently published an Article entitled, Why Can’t My Brother-In-Law Bob Be the Executor of My Estate?, Wealth Strategies Journal, October 14, 2019. Provided below is the abstract to the Article.

Fiduciary selection is crucial to the success of an estate and disability plan. Even a great plan can go awry if a fiduciary fails to uphold his or her fiduciary duties or fails to follow the terms of the Will or Trust. Add family dynamics to an already stressful situation and things go from bad to worse.

Article on The Practice of Law or Not the Practice of Law, That is the Question

Virginia H. Grigg recently published an Article entitled, The Practice of Law or Not the Practice of Law, That is the Question, Wealth Strategies Journal (2019). Provided below is introduction to the Article.

As attorneys, we do not have to worry about engaging in the unauthorized practice of law (UPL) because we are licensed to practice law in our given jurisdictions. However, we have office staff and we are responsible to ensure that they do not engage in the unauthorized practice of law. We also have clients that may come to us asking in what activities they may engage and not run afoul of the UPL rules. The purpose of UPL rules and enforcement is to protect the public against legal services being provided by unqualified individuals. However, there is a justice gap in the US and states are looking for ways to provide quality legal services to more of their residents at an affordable cost. Many jurisdictions are now licensing individuals who are not lawyers but serve clients in a quasi-lawyer position. We are also seeing a rise in the do-it-yourself legal industry and state bars must determine whether the providing of legal forms constitutes the practice of law in their jurisdictions.

Article on Ethical Issues in Representing a Client with Diminished Capacity

Howard S. Krooks recently posted an Article entitled, Ethical Issues in Representing a Client with Diminished Capacity, elderlawassociates.com. Provided below is an introduction to the Article.

Attorneys often encounter working with clients who have declined physically and/or mentally, which is known in legal parlance as diminished capacity. However, the law assumes that every person has legal capacity unless and until a court has determined otherwise.

In Gentrifying Philly, Speculators Pay Heirs Peanuts — Then Flip Their Properties for Massive Gains

Philadelphia has become a hot-spot for "flipping," or selling properties that people have owned for less than two years, second only to Detroit in profitability. Speculators Bryheim Murray and Kyle Easley have jumped on the bandwagon with a seemingly ingenious caveat: they contact heirs (through Ancestry.com leads) that are in line to inherit property that they are not aware of, explain they may have an exuberant tax bill if they actually get the property, and present them with an offer. The heirs are usually excited at the prospect of getting money that they were not expecting and jump to sell, usually completely unware of the property's true value.

Then enters the lawyer: Kevin Murphy, the most active seller of property in Philadelphia as an estate administrator. Murray and Easly, as buyers of the heir's property, have the heir assign Murphy as the newly established estate's administrator. Murphy then facilitates the sell, making sure all the taxes are paid and documents properly filed. His fee can range from $750 to over $9,000, court documents show, and the title company he uses is his own, housed in the same building as his law firm.

 Murphy claims that because he comes into the picture after the sale has been initiated, he is just a facilitator and that "I'm not representing anybody." David Horton, a professor of law and an expert on estates, wills, and trusts at the University of California Davis, said the deals may violate the “duty of care” that estate lawyers must uphold to the estate's heirs. The duty, long codified in judicial decisions, holds that lawyers entrusted with assets must care for them as if they were their own. He and another law professor, Reid Weisbord, an expert on estates at Rutgers University Law School, questioned Murphy’s belief that he had no responsibility to vet sale prices because he was hired after the deals were struck. They also said that the deals themselves were improper from the start because the heir were not declared official through probate.

See Jacob Adelman and Craig R. McCoy, In Gentrifying Philly, Speculators Pay Heirs Peanuts — Then Flip Their Properties for Massive Gains, Philadelphia Inquirer, September 27, 2019. 

CLE on Probate Process, Procedures and Documents: All the Forms and Checklists in One Place

The National Business Institute is holding a webcast entitled, Probate Process, Procedures and Documents: All the Forms and Checklists in One, on Tuesday, October 15, 2019 at 9:00 AM - 4:00 PM Central. Provided below is a description of the event.

Navigate Probate with Confidence

When the client is no longer there to make his or her voice heard, the task of interpreting his/her wishes to accurately settle the estate falls on your shoulders. Do you have all the tools you will need? This program will provide you with a comprehensive overview of the probate process, equipping you with the checklists, forms and documents you will need to guide your clients through each time-sensitive procedure. Learn what to do and when to do it, from the initial petition to the final accounting. Register today!

• • Don't miss a step - learn how to map out the entire probate process by utilizing a master checklist.
  • Examine the essential content of the initial petition and understand the procedure for filing it.
  • Receive practical tips on valuing and recording assets to be included in the estate inventory.
  • Handle creditor notices and responses.
  • Understand key provisions of trusts and their impact on the probate process.
  • Learn what must be included in the final accounting and review sample tax returns.

Who Should Attend

This program is designed for attorneys. It will also benefit accountants and CPAs, trust officers, and paralegals.

Course Content

• • Probate Process and Executor Duties: The Master Checklist with Deadlines
  • Wills: Key Provisions, Validity, Interpreting Unique Instructions
  • Initial Petition and Letters of Authority: Content and Procedure
  • Estate Inventory: Valuing and Recording Assets
  • Creditor Notices and Responses
  • Trusts: Key Provisions, Trustee Duties, and the Trust's Impact on Probate
  • Final Accounting: What Must and Should Be Included
  • TAX Returns and Schedules for the Estate and the Decedent: Forms, Deadlines, Exentions (With Sample Returns)
  • Estate Closing and Distributions: Notices of Proposed Action, Petition to Discharge the Fiduciary, and Other Key Documents
  • Ethical Practice Considerations and Concerns in Probate

CLE on Avoiding a Wealth of Trouble: Ethical Issues for Trust and Estate Lawyers

The American Law Institute is holding a webcast entitled, Avoiding a Wealth of Trouble: Ethical Issues for Trust and Estate Lawyers, on Thursday, October 24, at 12:00 - 1:30 PM Eastern. Provided below is a summary of the event.

Today’s trust and estate planning attorney must have a wide range of knowledge of substantive law, but also pay careful attention to professional responsibility and liability concerns that can be unique to this area of practice.

Register today for this important CLE program taught by Fellows of the American College of Trust and Estate Counsel (ACTEC) for a critical discussion of both common and sometimes unexpected dilemmas in practice. You’ll learn not only about recent ethics decisions and case law from around the country, but also what the disciplinary and malpractice implications are for lawyers.

What You Will Learn

Ethical challenges to be discussed by an expert panel include:

• • client-driven aggressive estate planning
  • common mistakes that can defeat a client’s objectives
  • problematic conflicts of interest
  • client selection and the importance of engagement letters
  • having adequate insurance coverage and complying with the policy requirements when claims are made or threatened
  • other ethical pitfalls that can ensnare trust and estate lawyers

Casey Kasem’s Widow Accuses Attorney of ‘Conspiring to Kill’ Him

Jean Kasem, the widow of the late radio DJ Casey Kasem, has now filed a wrongful death suit against his former attorney, Samuel D. Ingham III. She claims that the attorney and Casey's three adult children, Kerri, Julie and Michael, conspired to "isolate and kill Casey Kasem for financial gain."

This is just the latest in a string of legal allegations by the widow against Casey's children from his previous marriage. Last year, police in Gig Harbor, Washington, said they found no evidence of wrongdoing after investigating Kasem’s death at 82 in 2014. Jean has hired former LA Chief Prosecutor Becky James to fight her case.

Court documents state that Ingham did not "visit Casey in Washington state [where Casey died] to assess his needs when he was having trouble breathing" after he was hired to advocate for his interests. Jean and her daughter Liberty further claim the lawyer profited by billing hundreds of thousands of dollars in fees to the estate.

See Casey Kasem’s Widow Accuses Attorney of ‘Conspiring to Kill’ Him, Fox News, July 28, 2019.

CLE on Drafting a Living Trust: From Start to Finish

The National Business Institute is holding a video webcast entitled, Drafting a Living Trust: From Start to Finish, on Monday, July 29th, 2019, from 10:00 a.m. to 5:00 p.m. Central. Provided below is a description of the event.

Program Description
Practical Walkthrough of Trust Selection, Drafting, Funding and Taxation

Living trusts are one of the fundamental building blocks of estate planning. This legal course will take you through every step of the way in choosing, drafting and incorporating the trust into your client's estate plan. Register today!

• Get an update on the latest laws governing trusts and estates.
• Simplify drafting with sample key trust provisions.
• Make certain the trusts you draft are tax-efficient.
• Anticipate and prevent trust disputes.

Who Should Attend

This legal course is designed for attorneys. It will also benefit accountants, trust officers, and paralegals.

Course Content

• Estate Transfer Laws: What You Need to Know Before Drafting Begins
• Revocable or Irrevocable Living Trust: Helping Clients Choose the Right Option
• How to Draft Revocable and Irrevocable Trusts - With Sample Documents
• Funding the Trust
• Coordinating the Trust With the Rest of the Estate Plan
• Taxation Essentials for Revocable and Irrevocable Living Trusts
• Living Trust Dispute Basics: Proactively Preparing on the Front End
• Ethical Considerations

Article on The Prudence of Passivity: An Argument for Default Passive Management in Trust Investing

Bryon W. Harmon & Laura A. Fisher recently published an Article entitled, The Prudence of Passivity: An Argument for Default Passive Management in Trust Investing, ACTEC L.J. Vol 44, No. 2, 147-182 (Spring 2019). Provided below is an abstract of the Article.

Trustees, like all investors, are exposed to a wide-ranging marketplace of investment vehicles, techniques, strategies, and theories. Trustees have a threshold choice to make with respect to the manner in which trust assets are to be invested. Active management - historically, a conventional approach - aims to "beat the market" and surpass benchmark returns by picking and choosing among individual securities based on the trustee's determinations that they are mispriced (i.e., undervalued) and/or by timing transactions based on forecasting. Alternatively, trustees may choose to simply invest in and own entire markets, or asset classes, and accept overall market returns by using low cost asset class index funds. This latter approach is known as passive investing, or indexing.

This article traces both the historical development of financial scholarship regarding investment practices and legal scholarship addressing the evolution of fiduciary duties. It then reviews the modern prudent investing rules governing trust investment and explores several major issues: (1) whether a passive approach is encouraged or even required by law, (2) why so few professional trustees seem to employing passive investment management and (3) whether recent case law focusing on the costs of investing in the contexts of ERISA is a harbinger of similar arguments in the private trust area.

We conclude with a recommendation that a passive investment strategy become the default standard for corporate and professions trustess under modern iterations of the prudent investor rule.

How to Talk to Your Financial Advisers About a Chronic Illness

There are plenty of misconceptions about chronic illnesses, and as a society Americans do not understand how to deal with others that are facing them. If you or are loved one is facing a chronic illness, financial advisors should be made aware so that appropriate planning can be performed in a safe and comfortable place.

Many people believe that chronic illnesses are only an ailment of the elderly, but the truth is that 60% of those living with one are between the ages of 18 and 64. If you are living with a chronic condition, before you even meet initially with your financial advisor, you should make them aware if they should supply any necessary accommodations. As empathetic as a your advisor may be, they may not understand the physical assistance your disease or condition may require you to need. If there are cognitive impairments or a neurologist condition, ensure that your financial advisor understand what your needs are and where mental ability stands.

Clients should give advisers express permission to ask any questions so that they can understand all your needs and provide as comfortable a meeting as possible.

See Martin Shenkman, How to Talk to Your Financial Advisers About a Chronic Illness, Forbes, July 5, 2019.

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