Wills, Trusts & Estates Prof Blog

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

Monday, January 25, 2021

RPTE Advocates for Remote Ink Notarization and Remote Witnessing During the Pandemic

COVIDThe Covid-19 pandemic forced most if not all real estate and trust and estate attorneys to work from home and away from clients. Further, the elderly and others with health issues were advised to stay home and/or in shelter and to avoid face-to-face meetings. Due to the shelter-in-place, the standard practice of ink signatures and in-person witnesses before an in-person notary became nearly impossible to execute. 

This issue poses a conundrum because the people that are most at risk are the same people that are more in need of the execution of a will and other estate planning documents. In order to meet the legal needs of these people as well as attorneys and other clients, the legal industry had to evolve in a way that allowed clients to execute estate planning documents while also minimizing risks and danger. 

Since state law controls most of the requirements and standards for real estate and health and estate planning documents, "the executive committee of the section determined that RPTE should advocate that states adopt special rules and procedures for remote ink execution during the pandemic." 

These newly adopted rules would allow attorneys to serve clients that are or have family members that are susceptible to great risk to safely execute legal documents. The rules also provide protection to the attorneys with the same risk factor. 

Working with the ABA Governmental Affairs Office, RPTE leaders drafted a letter to be sent to state governors. The letter advocated for the issuance of executive orders and other types of legislation to allow for remote ink notarization and witnessing by other—simpler—means.

See Jo-Ann Marzullo, RPTE Advocates for Remote Ink Notarization and Remote Witnessing During the Pandemic, ABA: Probate & Property, Jan/Feb. 2021. 

January 25, 2021 in Current Events, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Thursday, January 21, 2021

Nebraska Supreme Court Construes Will: Intent To Disinherit Heir Must Be Express Or Necessarily Implied In Will

Estate planningIn In re Estate of Brinkman, "the Nebraska Supreme Court construed the terms of a will to determine that s decedent did not intend to disinherit his daughter under the terms of the will." 

Michael Brinkman died in 2016 survived by two children, Nicole and Seth. Kimberly Milius was named as personal representative. Kimberly is Seth's mother but not Nicole's. Nicole believed that she was entitled to an undivided one-half interest in Michael's estate, despite the fact that Kimberly is not her mother. Kimberly and Seth alleged that it was Michael's intent to disinherit Nicole. 

Since Nicole's name is not mentioned in then will, she filed a motion to construe the will under Nebraska law, "contending that an ambiguity existed in the term 'issue.'" Nicole argued that the term 'issue' was meant to refer to both her and Seth.

The Nebraska county court found that the will was ambiguous on whether Michael intended to disinherit Nicole and found that the language of the will did not disinherit her. 

The Nebraska Supreme Court found that the decedent (Michael) did not intend to disinherit his daughter. 

See Nebraska Supreme Court Construes Will: Intent To Disinherit Heir Must Be Express Or Necessarily Implied In Will, Probate Stars, January 18, 2020. 

January 21, 2021 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Friday, January 15, 2021

Will writing: a case of whodunnit or haven’t done it yet?

WillsApparently, there is a link between detective fiction and personal finance. According to Claer Barrett, "a scuffle over a will is one of the most useful plot devices for the writers of detective fiction—and the bigger the inheritance, the better." 

Although most of us love a good whodunnit, as Claer put it, "when it comes to making our own wills, it's often a case of 'haven't done it'." 

An estimated more than half of UK adults either have not made a will, or have not updated it in awhile. Both circumstances can pose a serious problem with dramatic consequences.

Apparently, January is the time when many people begin to make a will or update an existing one. Claer jokes that Christmas TV schedules may be secretly nudging people to do so. However, it is more likely that people spending time with their families during the holidays is the real trigger. 

This Christmas was a bit different considering the pandemic as last year brought a surge in will writing as the world was faced to accept the realities of life and death. Also, writing and executing wills became a bit easier as video witnessing of wills became available. 

If you haven't written a will or haven't updated a preexisting will in awhile, you should consider taking the steps to do so, as the consequences for failing to do so can be life altering. 

See Claer Barrett, Will writing: a case of whodunnit or haven’t done it yet?, January 6, 2021. 

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

January 15, 2021 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, January 14, 2021

Suspension imposed after appeals judge is accused of making himself a beneficiary of ex-client's will

Estate planningThe Georgia Supreme Court has suspended a state appeals judge and is engaging in an ethics investigation. 

The judge, Christian Coomer, allegedly made himself a beneficiary and his wife the executor when drafting wills for a former client. Coomer has also been accused of drafting an irrevocable trust for the client that designated Coomer as the trustee and beneficiary with the power to transfer funds to himself while the client was still alive. 

"A company owned by Coomer is also accused of borrowing $369,000 in a series of three loans from the client, the first of which was paid off on the day that the second loan took effect. Two of the loans listed the client’s own home as security, which Coomer later attributed to a scrivener’s error. The third loan was unsecured. Coomer has since repaid all of the loans." 

Coomer began representing James Filhart, the former client who is now 79-years-old, when Filhart sought guardianship of his girlfriend in a nursing home. 

According to the Georgia Judicial Qualifications Commission, Coomer transferred funds from his campaign account to his law firm account to cover minimal or overdrawn balances.

Coomer agreed to the suspension (with pay), but has denied any wrongdoing. 

See Debra Cassens Weiss, Suspension imposed after appeals judge is accused of making himself a beneficiary of ex-client's will, ABA Journal, January 6, 2021. 

January 14, 2021 in Current Affairs, Current Events, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Thursday, January 7, 2021

Millennials, It’s Time to Talk Estate Planning With Your Parents

Estate planningMillennials continue to get older and can no longer be looked at as children anymore. Some millennials are even moving into their forties. This means that Boomers are also continuing to get older, which means, Millennials may need to begin speaking to their parents, whom are Boomers, about estate planning. 

Boomers are at the age when it becomes necessary to have the difficult conversations with them, and the estate planning conversation is one of the most important. This discussion goes further than just conversations about wills and inheritance. It is important to discuss power of attorney, living wills, and even death event planning.

You should discuss wills, trusts, inheritance and any documents needed in regard to those matters. Documents for power of attorney or health care proxy will likely need to be discussed. Also, a living will is very important in the case of your parents being unable to do tasks like pay the bills and other things. 

These conversations are not easy and are often uncomfortable and difficult to bring up. One way to help this is to approach estate planning as a way to alleviate anxiety and stress and present the idea to your parents as such. 

See Erin Lowry, Millennials, It’s Time to Talk Estate Planning With Your Parents, Bloomberg, December 30, 2020. 

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

January 7, 2021 in Current Events, Death Event Planning, Elder Law, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Wednesday, January 6, 2021

Article on Forfeiture and the Effect of Section 33A of the Wills Act 1837

Brian Sloan recently published an article entitled, Forfeiture and the Effect of Section 33A of the Wills Act 1837, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Estate planning

The forfeiture rule is “the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing”. Section 33A of the Wills Act 1837 (applicable to deaths on or after 1 February 2012) provides that “where a will contains a devise or bequest to a person who” “has been precluded by the forfeiture rule from acquiring it”, “[t]he person is, unless a contrary intention appears by the will, to be treated for the purposes of this Act as having died immediately before the testator”. On one view, any will is now simply read as if the forfeiting beneficiary has predeceased the testator. As this paper will explain, however, the phrase “for the purposes of this Act” has created unintended complications in the minds of some, with the potential considerably to reduce the impact of section 33A in an undesirable manner. The paper considers whether the problem with the scope of section 33A identified by some scholars is truly present, alongside what the solution to it might be.

January 6, 2021 in Articles, Current Events, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, January 4, 2021

Covid-19 Puts Wills, Estate Plans In Spotlight

Estate planningTypically, investors do not particularly focus on wills and estate plans. However, in the wake of COVID-19, many have began to take those things into consideration. 

"The Q4 Wells Fargo/Gallup Investor and Retirement Optimism Index shows that 34% of investors said they have a written will, 4% have written estate plans, and 17% have both. The report is based on a Gallup Panel web study of 1,709 U.S. investors, aged 18 and older, from Nov. 9 to Nov. 15." 

The data shows that higher-income investors aren't any more prepared than other investors. However, wills and estate plans are more common as age increases. "The percentage with no preparations declines from 70% for investors under age 50 to 17% for those 65 and older." 

There is also not a high level of communication between family members and heirs in regard to wills and estate plans. This is not surprising as talking about wills and estate plans involves talking about death and many try to avoid those conversations if possible. 

As COVID-19 continues to affect the world, it is important to consider creating or updating your estate plan and communicating those things with your loved ones and heirs. 

See Jacqueline Sergeant, Covid-19 Puts Wills, Estate Plans In Spotlight, Financial Advisor Mag, December 28, 2020. 

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

January 4, 2021 in Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, December 29, 2020

What to Do Before You Die: A Tech Checklist

DigitalassetsWhen we think about what will happen to our "things" when we die, we often do not consider our Facebook, twitter, google, or snapchat accounts. Technology is often the last thing on our minds.

It may be time to consider putting together a tech checklist so that your loved ones can have access to digital files like photos, videos, and other memories. Given the continuous growth in technology, it is more important than ever before to make a plan for your digital assets. This has often been referred to as a "digital legacy." 

Below is a checklist to help you put together your digital legacy plan:

  1. Take inventory of your digital assets 
  2. Add a digital executor to your will [Editor's note: It is problematic whether a court will allow bifurcation of an executor's duties.]
  3. Add digital heirs to your accounts
  4. Plan to pass on your passwords
  5. Record your stories

This will be a great start for putting together a solid plan for your digital assets. 

See Joanna Stern, What to Do Before You Die: A Tech Checklist, Wall Street Journal, December 18, 2020. 

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

December 29, 2020 in Estate Administration, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Saturday, December 26, 2020

Ohio Supreme Court: Interest Under Will Eliminated If Beneficiary Witness Is Necessary To Establish Validity Of Will

Estate planningIn In re Estate of Shaffer, the Ohio Supreme Court held Ohio's voiding statute "applies to both wills executed in compliance with formal requirements and those that fail to adhere to them." 

In 1967, Joseph Shaffer executed a formal will which stated that if his wife died before him, his estate would pass to his two sons, Mark and Terry, through trust. Joseph's wife died before him and he died in 2015. The probate court then admitted the 1967 will to probate. 

Juley Norman filed a claim against the estate and attached a copy of a note written on a notecard that was signed by Joseph Shaffer. However, there were not any other signatures on the notecard. The notecard bequeathed 1/4 of the estate to Juley Norman and appointed Terry as executor. 

The Ohio Probate Court held that the handwritten notecard was not a valid will. An Ohio appellate court reversed the decision of the probate court and admitted the notecard will, honoring the bequest to Juley. The Ohio Supreme Court held that Ohio's voiding statute applies to wills executed in compliance with formal requirements and those that are not. 

The Ohio Supreme Court ultimately found that the probate court rules correctly when they applied Ohio's voiding statute and determined that Juley Norman "as a beneficiary witness who was necessary to establish the validity of the will under Ohio law, could not be included in the list of beneficiaries of Joseph Shaffer’s estate." 

See Ohio Supreme Court: Interest Under Will Eliminated If Beneficiary Witness Is Necessary To Establish Validity Of Will, Probate Stars, December 21, 2020.

December 26, 2020 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Wednesday, December 23, 2020

Article: Obligations And Powers Of Superannuation Trustees Concerning Situations Of Actual Or Possible Conflict

Joseph Campbell recently published an article entitled, Obligations And Powers Of Superannuation Trustees Concerning Situations Of Actual Or Possible Conflict, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Estate planning 

Part 1 summarises the present status as a matter of precedent in Australia of the general law rule that a fiduciary not be in a situation of conflict, the meaning of being “in a situation of conflict”, and the recognised circumstances in which there is an exception to the rule. It also criticises the application of the rule to a superannuation trustee in Jones v AMP Perpetual Trustee Co NZ Ltd . Part 2 considers the relationship of the pre-existing general law and statute law governing trusts to the provisions of the Superannuation Industry (Supervision) Act 1993 (“SIS Act”). Part 3 considers the effect of the initial introduction of the SIS Act on the application of the no-conflicts rule to superannuation trusts. Part 4 considers how the replacement of the original statutory covenants in the SIS Act with a set that included express obligations concerning conflicts affects the possible application of the general law no-conflicts rule. It argues that it is still possible, in some circumstances, for the general law no-conflicts rule to apply, and considers the limitations on now amending a trust deed that did not already exclude the no-conflicts duty to amend or limit that duty. Part 4 also considers various aspects of the construction and practical application of the new covenants concerning conflicts, including the role of the prudential standards, and some other statutory amendments that came into operation in 2013 and 2019 that bear upon a trustee’s actions in a situation of conflict. Part 5 provides several miscellaneous examples, discussed with particular reference to outsourcing, of principles that do not mention the word “conflict” but that could need to be taken into account when a superannuation trustee is in a situation of conflict.

December 23, 2020 in Articles, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)