Wills, Trusts & Estates Prof Blog

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

Saturday, May 25, 2019

CLE on The Probate Process from Start to Finish

CLEThe 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

May 25, 2019 in Conferences & CLE, Current Affairs, Estate Administration, Estate Planning - Generally, Generation-Skipping Transfer Tax, Gift Tax, Intestate Succession, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Friday, May 24, 2019

Healthy Dog Euthanized for Burial with Owner in Virginia

SaddogAnita Callop-Thompson, 67, of Chesterfield County, Virginia, was found dead in her home on March 8, according to the police department. Her only remaining pet, a Shih Tzu mix by the name of Emma, was taken to the animal shelter to be held until the executor figured out what her owner had wanted.

Though Anita was "devoted to her four-legged friends," it appeared she did not wanted to be parted from them, even in death. Her will stipulated that her dog be interred with her. The executor of her estate picked Emma up on March 22, had her euthanized and then took the dog to a local pet cremation center. Under Virginia state law a pet cannot be "interred in the same grave, crypt, or niche" as a human, so an urn containing the dog's remains was given to the representative of Anita's estate.

Nothing the executor or the dog's owner did was illegal, though the public may see it as unethical. According to Matthew Liebman, director of litigation at the Animal Legal Defense Fund, pets are considered property, and, "As long as you're not violating cruelty law, you have a right to treat your property however you wish." However, Liebman noted that at four cases pertaining to this issue have ended up in the courts, and judges have decline to enforce such will provisions.

See N'dea Yancey-Bragg, Healthy Dog Euthanized for Burial with Owner in Virginia, USA Today, May 23, 2019.

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

May 24, 2019 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, May 23, 2019

Doris Day Rejected Lifetime Achievement Award

DorisdayThe legendary actress and singer Doris Day passed away on May 13 at the age of 97, and it was no surprise to her longtime publicist Charley Cullen Walters that she did clearly stated in her will that she did not want a funeral, memorial, or even a grave marker.

Many around the country took to social media to remember the icon and mention their confusion with the odd situation of a Hollywood star not wanting any time spent memorializing her death. “[It] was something a lot of people were surprised [by] — some people were even upset by it,” Walters explained. “I personally completely understand that having worked with her.”

Walters said Day did not start acting to become famous. “There’s nobody like her anymore. She was truly an egoless person who did not crave the spotlight. In fact, she shied away from it. For her, her acting and her music career were her jobs." In fact, she left Hollywood in 1973 and had no intentions of returning. In fact, the Academy of Motion Picture Arts and Sciences reportedly offered Day a Lifetime Achievement Award about six times — and all six times she turned them down.

See Stephanie Nolasco & Julius Young, Doris Day Rejected Lifetime Achievement Award About Six Times, says Publicist: 'Our Job was to Protect Her,' Fox News, May 21, 2019.

May 23, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Film, Music, Wills | Permalink | Comments (0)

Wednesday, May 22, 2019

Article on Boilerplate No Contest Clauses

LastwillDavid Horton & Reid K. Weisbord recently published an Article entitled, Boilerplate No Contest Clauses, Wills, Trusts & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Testators sometimes use "no contest clauses": terms that disinherit anyone who files litigation against the estate. This invited contribution to Law and Contemporary Problems’ special issue on The Butterfly Effect in Boilerplate Contract Interpretation examines whether no contest clauses are a symptom of a larger pathology: attorneys relying on standardized terms without ascertaining the testator’s informed preferences.

We flagged this overarching problem in a previous paper, Boilerplate and Default Rules in Wills Law: An Empirical Analysis. In that piece, we studied 230 wills from Sussex County, New Jersey, and discovered that they were riddled with stock terms that sounded authoritative, but made little sense in context. Alarmingly, this language often over-rode majoritarian default rules (principles that try to fill gaps in a will with a result that dovetails with most testators’ wishes). Thus, we urged courts and lawmakers to reinforce certain background principles by making them “sticky” (harder to draft around).

This Article builds on this foundation by reviewing no contest clauses in 457 wills that were probated in Alameda County, California in the late 2000s. We show that testators and their lawyers overuse no contest provisions. Indeed, these terms appear in nearly 70% of the wills in our sample, including many estates in which there is no realistic possibility of discord. Thus, we conclude that some no contest provisions are intent-thwarting boilerplate.

We then offer evidence that sticky default rules can help combat this problem. In 1994, the California Supreme Court decided Burch v. George, which interpreted a no contest clause expansively. In 2001, the state legislature responded to concerns that testators did not appreciate the capaciousness of no contest clauses under Burch by passing Probate Code section 21305. This statute declares that certain types of lawsuits (such as creditor’s claims) and instruments (like codicils) do not trigger contest penalties unless the testator explicitly directs otherwise. This choice architecture makes section 21305 a sticky default: it “nudges” testators toward accepting a favorable background principle by increasing the cost and effort required to opt out. The wills in our sample reveal that the statute may also have made no contest clauses more visible to testators and attorneys. Indeed, after 2001, the following statistically significant changes occurred: (1) fewer testators included a no contest clause, (2) more wills featured a custom-made no contest provision, and (3) even controlling for other variables through a logit regression analysis, odds of finding a seemingly gratuitous no contest terms declined. These findings support our claim that sticky defaults can serve as an antidote to the careless use of boilerplate in wills.

May 22, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, May 21, 2019

3 Handwritten Wills Found in Aretha Franklin’s Home

ArethaAretha 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.

May 21, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, Music, Wills | Permalink | Comments (0)

Friday, May 17, 2019

CLE on Estate Planning: New Laws That Make Old Tools Obsolete

CLEThe National Business Institute is holding a teleconference entitled, Estate Planning: New Laws That Make Old Tools Obsolete, on Friday, June 7, 2019, from 10:00 AM to 11:30 AM Central. Provided below is a description of the event.

Program Description

Stay on the Cutting Edge of Your Practice

This timely update will review the latest changes in the rules and will offer new tools to adapt to the new regulatory environment. Make certain your clients get the most up-to-date representation - register today!

  • Get an incisive summary of the tax changes and their implications for existing planning tools.
  • Learn which deductions remain and how to obtain them.
  • Identify planning approaches that no longer help your clients.
  • Gain practical pointers for fixing old trusts.

Who Should Attend

This legal update is designed for attorneys. It will also benefit accountants and CPAs, trust and tax professionals, and paralegals.

Course Content

  • Leveraging and Reporting the Step Up in Basis (Recent IRS Guidance)
  • QPRT Replacements
  • Obsolete Small-to-Medium Size Estate Tools and How to Update Them
  • The Sky High Estate/Gift/GST Tax Exemption and the New Approaches it Dictates
  • Old Large Estate Techniques That No Longer Work and What to Replace Them With
  • Charitable Giving after TCJA
  • Using the QBI Deduction: New Opportunities
  • Fixing Other Old Trusts
  • What if? . . . How the Potential Clawback of the New Rules Affects Client Advice

May 17, 2019 in Conferences & CLE, Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Income Tax, New Legislation, Trusts, Wills | Permalink | Comments (0)

Thursday, May 16, 2019

Article on Essay Response to 'Asymmetries in the Generation and Transmission of Wealth'

RainmoneyReid K. Weisbord recently published an Article entitled, Essay Response to 'Asymmetries in the Generation and Transmission of Wealth', Elder Law eJournal (2018). Provided below is an abstract of the Article.

What role should wealth transfer law play in reducing economic inequality? In “Asymmetries in the Generation and Transmission of Wealth,” Professor Felix Chang proposes thoughtful reforms to reduce economic inequality by altering the rules of wealth transmission. The current state of wealth inequality in the U.S. may, indeed, justify regulatory intervention, but this is a complex, subjective question. Consider, for example, a recent social policy experiment in which Yale Law School students self-identified as politically progressive but exhibited self-interested distribution preferences that favored efficiency over equality. Nonetheless, objective economic indicators published by French economist Thomas Piketty show that wealth inequality in the U.S. has, in fact, increased in recent years. That trend lends support for Chang’s normative claim of asymmetry between the regulation of wealth generation and transmission. In response to Chang’s call for redistributive reforms, this Essay proposes repackaging the federal wealth transfer tax structure and applying it to a postmortem system of “means testing” for federal entitlements, such as Social Security and Medicare. This system would recapture federal entitlement benefits from wealthy decedent estates, but to protect the vested interests of aging current beneficiaries, postmortem means testing would have to be phased-in gradually by exempting anyone currently over the age of fifty.

May 16, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Has Granny Signed a Pre-Nup?

PrenupThe number of people getting married aged 65 and over rose by 46% between 2004 and 2004 according to the latest Office for National Statistics marriage data. During that same time period, older divorces were also on the rise. 92% of those that were getting married over the age of 65 had already been married once before, either being widows/widowers or divorcees.

Even so, people are waiting until their thirties to get married for the first time. During that time, even before their first go around, brides and grooms may have already accumulated enough assets to call for a prenuptial agreement to safeguard their possessions. Sarah Balfour, a partner at Irwin Mitchell who spoke at the Later Life Planning Conference in London last month, says she had seen a considerable increase in the demand for prenuptial and occasionally for postnuptial agreements to assign assets after marriage. “One of the largest areas concerns second- or third-generation wealth. Grandparents ask their grandchildren to enter into a pre-nup." In the United Kingdom, prenuptial agreements do not carry statutory weight so it is questionable whether they would survive a divorce.

The Supreme Court in the UK said in a landmark case in 2010 that if the evidence was strong, prenuptial agreements could have decisive or compelling weight. Lawyers and legal scholars perceive the case as test of whether certain prenuptial agreements will stand up in court in England and Wales. But to have any true weight, they must be fair to all parties involved.

See Lindsay Cook, Has Granny Signed a Pre-Nup?, Financial Times, May 15, 2019.

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

May 16, 2019 in Current Affairs, Elder Law, Estate Administration, Estate Planning - Generally, New Cases, Trusts, Wills | Permalink | Comments (0)

Wednesday, May 15, 2019

What Should I Do With My Inheritance?

CypresThe coming $30 trillion wealth transfer from baby boomers to the next generation has been presented in many pieces, and has a number of people thinking about their potential inheritance. As a prudent planner, an individual should have already planned for certain aspects of their retirement without the expectation of an inheritance. But how can you adjust your plan if you are almost positive that you will be getting a good to decent sized inheritance?

There are certain variables that make it difficult to account for an inheritance, such as families being against talking about it, investments may change, and people are living longer than before. The morbid truth is that with people living longer they tend to use up what would be the next generation's inheritance on living costs and long term care for themselves. Have an in-depth conversation with grandparents about possibly helping out now with the youngest generation - the grandkids - rather than waiting to pass on their estate in bulk on their deathbed.

See Ben Carlson, What Should I Do With My Inheritance?, A Wealth of Common Sense, May 14, 2019.

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

May 15, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Monday, May 13, 2019

Even the Best Laid Plans Can Go Awry: The “Breakdown” of Tom Petty’s Estate Plan

TompettyTom Petty’s unexpected death on October 2, 2017 dismayed his fans worldwide. Whenever a celebrity passes away, especially when it is sudden, the news sadly can be followed up with the story of how they failed to plan for their death, such as was the case with Prince and Aretha Franklin. But Tom Petty had a complete estate plan laid out, including a 77-page revocable trust document that he diligently amended throughout his life.

In the trust agreement, Tom named his second wife, Dana York Petty, to serve as the successor trustee after his death. One of her responsibilities was to create an LLC to hold Petty's music catalog. Though Dana is to have broad discretion such as how the limited liability company makes decisions, Petty's two daughters from his previous marriage are entitled to “participate equally” in the management of the limited liability company. The wording has unfortunately created tensions between the daughters and their stepmother.

The daughters have taken the position that, as the holders of the majority vote of the company, they have the power to control the company, including Petty’s artistic property. Dana, on the other hand, has taken the position that Petty intended for the parties to unanimously consent to actions taken by the company. Litigation has ensued between the parties.

Though Tom Petty appeared to put together a well executed estate plan and trust document, a prudent estate planning attorney may have advised him to appoint an independent trustee to serve as the successor trustee following his death and to require a professional manager to operate the limited liability company. The objectiveness of the independent trustee can foster confidence and cooperation between the trustee and the beneficiaries.

See Mary Rennie Rowe “M.R.” Litman, Even the Best Laid Plans Can Go Awry: The “Breakdown” of Tom Petty’s Estate Plan, WilliamsMullen.com, May 7, 2019.

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

May 13, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Music, New Cases, Trusts, Wills | Permalink | Comments (0)