Wills, Trusts & Estates Prof Blog

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

Monday, September 16, 2019

Article on A "Mere Expectancy?" What Rights do Beneficiaries of a Revocable Trust have Prior to the Death of the Settlor?

RevocabletrustRichard C. Ausness recently published an Article entitled, A "Mere Expectancy?" What Rights do Beneficiaries of a Revocable Trust have Prior to the Death of the Settlor?, Quinnipiac Probate L.J., Vol. 32 Iss. 4 (2019). Provided below is the introduction to the Article.

Revocable trusts became a popular form of a will substitute in the 1960s and remain so to do this day. If the trust is funded, the settlor typically retains the right to receive income from the trust, the right to invade the trust principal, and the right to modify the terms of the trust. In addition, the settlor may serve as trustee or may appoint a third-party trustee. At the settlor's death, the trust assets, which may also include property transferred to the trust from the settlor's probate estate by means of a pour-over provision in the will, will be distributed to the trust's remainder beneficiaries in accordance with the terms of the trust.

Because the settlor usually retains an absolute right to revoke or modify the terms of a revocable trust at any time, courts generally refuse to afford remainder beneficiaries any rights in the trust while the settlor is alive. Instead, courts have ruled that remainder beneficiaries have no standing to seek information about the trust or challenge the trustee's actions, regardless of whether the trustee is the settlor or a third-party. However, the situation becomes somewhat murky once the settlor dies and the interests of the remainder beneficiaries are no longer "mere expectancies."

Part II briefly examines the nature and origin of the revocable trust. Part III considers how courts treats objections by remainder beneficiaries to actions taken by the settlor while serving as trustee. Part IV surveys attempts by remainder beneficiaries to question whether the settlor lacks sufficient mental capacity to revoke or modify the trust or whether such actions are the product of undue influence. Part V concerns the ability of remainder beneficiaries to contest the actions of a third-party trustee while the settlor is alive.

Part VI deals with the problem of whether remainder beneficiaries should have the power after the settlor's death to challenge actions taken by the settlor while alive on the theory that the settlor was mentally incompetent or was subject to undue influence. Part VII looks at requests for information or an accounting from a third-party trustee made after the settlor's death. Part VIII focuses on the controversial and perplexing issue of whether a remainder beneficiary should be allowed to sue the third-party trustee of a revocable trust after the settlor's death for wrongdoing allegedly committed during the settlor's lifetime. Part IX evaluates both doctrinal and normative perspectives on the questions of remainder beneficiary rights after the death of the testator. Finally, Part X offers a solution to the conflict of authority on this issue.

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

As Aretha Franklin’s Heirs Dispute Control of Estate, Judge Orders Court Supervision

ArethaThe reigning queen of soul, Aretha Franklin, died in August of last year and the world believed that passed away without a will. But the discovery of three handwritten documents found in her home foreshadowed a rocky and emotional road for her family.

If Franklin had indeed died intestate, Michigan law dictated that because she did not have a spouse at the time of her death, her $80 million estate would have been divided equally among her four sons. But in each of the wills, provided specific provisions to be made for her oldest son, who reportedly has special needs, and that the balance of assets would then be distributed equally among her other three sons. But there remains a question of whether Franklin did create the wills herself, and the youngest son, Kecalf, convinced the judge to have a handwriting expert examine the wills to ensure his mother wrote the documents.

Aretha's niece, Sabrina Owens, was originally named the estate's personal representative, but Kecalf has also petitioned the court to replace her - with him, thus causing dissention among the family. Owens was Aretha's choice to handle her estate, and she is known to be a capable business person, but the largest asset to the estate is no surprise: the rights to the diva's music catalog and likeness. If properly managed, these can be a financial powerhouse to the heirs and preserve their mother's legacy for future generations.

See Cozen O'Connor, As Aretha Franklin’s Heirs Dispute Control of Estate, Judge Orders Court Supervision, Lexology, September 11, 2019.

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

September 16, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Intestate Succession, Music, New Cases, Wills | Permalink | Comments (0)

Sunday, September 15, 2019

Two of Pat Bowlen’s Daughters Take Legal Action to Challenge Ownership Trust

BroncosThe 2009 trust created by Pat Bowlen to ensure a succession plan for the ownership of his professional football franchise, the Denver Broncos, is now being attacked in court. Two of his daughters, Beth Bowlen Wallace and Amie Klemmer, are claiming the validity of the Patrick D. Bowlen Trust on the grounds that their father lacked the capacity to form the trust and that he was under undue influence at the time of its creation.

Essentially, the trustees choose one of Bowlen's 7 children to control and run the team. It is widely believed that 29-year-old Brittany Bowlen unofficially has been selected by the trustees, and that it’s just a matter of time before the selection occurs. Previously, the court had dismissed an action by Bowlen's brother brother - acting on behalf of Wallace and Klemmer - that questioned the authority of the three trustees who have managed the team since 2013.

Wallace and Klemmer claim that their father was first diagnosed with Alzheimer's in 2006, three years before the creation of the trust, and that he no longer had the capacity to do so. The stakes are high for the daughters, though; they could end up being completely disinherited by fighting the trust. So they are putting their portions of their father's estate on the line in order to challenge the current structure for determining control of the Broncos.

See Mike Florio, Two of Pat Bowlen’s Daughters Take Legal Action to Challenge Ownership Trust, Pro Football Talk-NBC Sports, September 13, 2019.

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

September 15, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Sports, Trusts, Wills | Permalink | Comments (0)

Monday, September 9, 2019

Estate Planning and Millennials

MillennialsNo matter the debate among other generations, millennials are legal adults. As such, they need all the same documents any other adult would need, including a will, a durable power of attorney and a living will. A Durable Power of Attorney names an agent to act on your behalf with respect to financial and other decisions in the event of incapacitation, which could happen to anyone, no matter their age. Depending on their personal circumstances, they may even need more intensive planning.

If a millennial's only assets are joint owned or already have designated beneficiaries (such as a bank account), there may be no need for a will; of course, always confer with an estate planning attorney. 

As the most digitalized generation that was essentially raised online, a millennial may want extra care with their digital assets. Maybe they want their Facebook page memorialized or a financially successful blog continued or even photos that have no physical medium to be distributed. A consice list of user names and passwords should be compiled along with instructions for the corresponding account, or utilize a reputable service to do so.

Millennials commonly adopt pets before (or even instead of) having children, so putting together a pet trust may be necessary. Without one, a cherished fur baby may end up with a caregiver that does not provide for the pet as the owner would have intended. 

See Rebecca Wrock, Estate Planning and Millennials, Varnumlaw, September 9, 2019.

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

September 9, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Saturday, September 7, 2019

CLE on Probate Process: Quick Timeline Overview and Checklist

CLEThe National Business Institute is holding a teleconference entitled, Probate Process: Quick Timeline Overview and Checklist, on Thursday, September 12, 2019, at 1:00 pm to 2:30 pm Central. Provided below is a description of the event.

Understand and Follow the Key Steps

Do you have a clear view of probate process from start to finish? This concise guide will quickly take you through all the crucial stages of the process. Experienced faculty will provide essential forms and checklists to ensure no stone is left unturned. Register today!

    • Get a bird's eye view of probate administration.
    • Come away with a master checklist of deadlines, tasks, and necessary forms.
    • Save time on marshalling and inventory of assets with practical tips from faculty.

Who Should Attend

This program is designed for attorneys. Accountants, trust administrators, estate planners, tax professionals, and paralegals may also benefit.

Course Content

    • The Small Estate Qualifications and Timeline
    • The Formal Probate Procedure - What Must be Done and When
    • The First 48 Hours and Initial Notices to Creditors, Beneficiaries and State Agencies
    • Locating the Will and Beneficiaries and Proving the Will
    • Asset Marshalling and Inventory Forms and Tasks
    • Key Tax Deadlines, Forms, and Extensions
    • Executor Duties (Master Checklist and Forms)

September 7, 2019 in Conferences & CLE, Elder Law, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, September 3, 2019

Article on Recent Cases: Intestacy, Wills, Probate, and Trusts

WillGerry W. Beyer recently published an Article entitled, Recent Cases: Intestacy, Wills, Probate, and Trusts, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This article discusses judicial developments (mid-2018 to mid-2019) relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The discussion of each case concludes with a moral, i.e., the important lesson to be learned from the case. By recognizing situations that have led to time consuming and costly appeals in the past, probate judges can reduce the likelihood of appeals and their success and estate planners can reduce the likelihood of the same situations arising with their clients.

September 3, 2019 in Articles, Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, New Cases, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Breaking the Silence: Dealing with Mental Health Issues in Estate Planning

MentalillnessEstate planners, in their role in advising such an intimate aspect of their clients' lives, deal with a vast array of diverse individuals. Many of those clients may be affected by a family member with a mental illness or in fact be affect by a mental illness themselves.

Statistics show that more people are touched by mental illness than previously thought, as many as one in five Canadians. The taboos of the past dictating silence on the issue should be shoved aside so that there can be an honest and open discussion between all involved. Mental illnesses and their affects on a child's or grandchild's ability to provide for themselves should be considered in a thorough estate plan. Protection can be accomplished through a trust with instructions to the trustee to pay income and capital for their child's benefit, but also the ability to terminate the trust should the protection of a trust not be necessary when their child reaches a more mature age. 

As mental illnesses a highlighted more in the public eye and not seen as the stigma that they once were, more people will understand their loved ones as well as their needs.

See Margaret O'Sullivan, Breaking the Silence: Dealing with Mental Health Issues in Estate Planning, O'Sullivan Law, August 30, 2019.

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

September 3, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Science, Trusts, Wills | Permalink | Comments (0)

Saturday, August 31, 2019

The Legal Dangers of Living Together

WeddingcakeAccording to the U.S. Census Bureau, the number of unmarried couples who 50 and over shot up 75% between 2007 and 2016. For many it is because they have already experienced one difficult divorce and are nervous to entangle themselves and their possessions again. But simply living together can end up being complex because estate planning laws were written to favor married couples.

If one partner has a medical emergency and has not executed a health care power of attorney, the other partner cannot make any decisions for them. They would be considered "legal strangers." If they were married, however, not having the document would not hinder the healthy partner from making appropriate choices. Unmarried couples also need to get signed HIPAA releases so medical information can be released to them. Death of one partner can also create more woes. Without the proper legal documents, the surviving partner won’t be entitled to make decisions regarding the donation of the deceased’s organs or arrange for the person’s burial or cremation.

When there is a financial imbalance and one partner has promised to take care of the other, with no trust or will in place can cause serious problems for an unmarried couple. If the wealthier one dies intestate, their assets will be distributed according to the intestacy laws of their state and an unmarried partner is not recognized as an heir. On the other hand, if they were married and died intestate in a community property state, the surviving spouse is automatically entitled to inherit as much as half the value of the deceased’s assets.

See Brad Wiewel, The Legal Dangers of Living Together, Next Avenue, August 28, 2019.

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

August 31, 2019 in Current Affairs, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Friday, August 30, 2019

CLE on Common Issues Involving Unusual Assets: What Estate Planners Need to Know

CLEThe American Law Institute is holding a webcast entitled, Common Issues Involving Unusual Assets: What Estate Planners Need to Know, on Wednesday, September 25 2019 from 1:00 pm to 2:00 pm Eastern. Provided below is a description of the event.

Why You Should Attend
Sometimes it is a client’s most cherished possessions beyond financial accounts that require extra planning by the estate planner. These types of assets, often referred to as unusual assets, pose a unique set of problems when attempting to draft an estate plan that is suited to the client’s intentions. Issues can arise when these assets are highly regulated, hard to value, or the rules for handling a specific asset varies widely from state to state. What is the best way to deal with these out-of-the-ordinary items?

What You Will Learn
Join us for this 60-minute video webcast that addresses the challenges that surface when advising fiduciaries on the valuation , liquidity, transfer of control, and payment of taxes involved with the planning and administration of unusual assets, including:

    • Digital assets
    • Firearms
    • Children of new biology
    • Wine
    • Aircraft

Questions submitted during the program will be answered live by the faculty. All registrants will receive a set of downloadable course materials to accompany the program.

Who Should Attend
This accredited continuing legal education program will benefit all estate planning attorneys and professionals.

August 30, 2019 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Food and Drink, Technology, Trusts, Wills | Permalink | Comments (0)

Canadian Manhunt Killers Recorded 'Last Will and Testament' on Phone Before Killing Themselves

PhonesThe two young men that led the Canadian police and military on a manhunt that spanned across three provinces were found dead on August 7 of self-inflicted gun wounds. Kam McLeod, 19, and Bryer Schmegelsky, 18, were wanted for second-degree murder of a British Columbian man, Leonard Dyck, and were also suspects in the killings of American Chynna Deese, 24 and her Australian boyfriend, Lucas Fowler, 23. The Royal Canadian Mountain Police reported that the two men were dead for "a number of days" before their bodies were discovered 2,000 miles away from where the two murders occurred and 5 miles away from the suspects' burnt out truck. 

It has also been reported that they left a video message entailing a "last will and testament" on a mobile phone. An unnamed family member who did not personally view the video said the family was shown 30 seconds of a videoin which the two men said goodbye and described their last wishes for their remains.

See Travis Fedschun, Canadian Manhunt Killers Recorded 'Last Will and Testament' on Phone Before Killing Themselves, Fox News, August 20, 2019.

August 30, 2019 in Current Events, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)