Wills, Trusts & Estates Prof Blog

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

Tuesday, April 9, 2019

Kristoff St. John's Ex-Wife Mia Says She's the Sole Beneficiary of His Life Insurance Policy

KristoffThe family drama in the wake of Kristoff St. John's death is coming to a boil as different members vie for control of different sections of his estate. His father previously filed to become executor of St. John's estate, but then the eldest daughter of the deceased, Paris, objected and filed her own petition last month, stating that her father died without a will.

Now, his ex-wife Mia is jumping into the foray. “Kristoff did not have a will. What was found were pages in a journal. There were things that were scribbled out, crossed out, and we just want to make sure — my daughter just wants to make sure — that his wishes are carried out,” she says. Mia says her daughter his not fighting St. John's father, but rather trying to clarify her father's last requests. 

Mia and St. John were married from the years 1991 to 1995 and had two children together, Julian, died by suicide at age 24 in 2014, and Paris. Mia also claims that because of Julian's death, she is the sole remaining beneficiary of a life insurance policy for the actor. He was found dead in his home in the San Fernando Valley on February 3rd, and a month later his death was ruled an accident. 

See Elise Burger, Kristoff St. John's Ex-Wife Mia Says She's the Sole Beneficiary of His Life Insurance Policy, People, April 4, 2019.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

April 9, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, New Cases, Non-Probate Assets, Television, Wills | Permalink | Comments (0)

Monday, April 8, 2019

A Second Walk Down the Aisle can Complicate Estate Planning

MarriageMajor life events should result in a person reviewing and possibly revising their estate planning documents. Though most people hope to marry once in their lifetime, a reality of our society is that second marriages often occur. To ensure that you provide for your current spouse and juggle benefits for your children from both marriages, diligent planning is necessary.

  • Update your will and other document
    • Some states void an ex-spouse beneficiary or executor designation upon divorce, but it always a good idea to update documents to ensure that your intentions are clear.
  • Consider a prenuptial agreement
    • For states that have an "elective share" for spouses and disallow disinheriting - even when the new spouse is financially independent - prenuptial agreements can waive these rights to each other.
  • Review beneficiary designations
    • Just as with wills, beneficiary designations for insurance policies, annuities, and retirement plans may not change automatically upon a divorce. If a designation is a minor child from the previous marriage, keep in mind that your ex-spouse may become that child's guardian and have access to those funds.
  • Make the most of trusts
    • If you believe that it is possible that your current spouse or children may be irresponsible with any wealth given to them outright, trusts may be the answer. An option is to set up a trust that provides your new spouse with income for life and preserves the principal for your children.
  • Avoid unintended consequences
    • Discuss with your estate planning advisor any revisions necessary to ensure you are not surprised by unintended consequences down the road.

See A Second Walk Down the Aisle can Complicate Estate Planning, FSA law, March 25, 2019.

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

April 8, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Wednesday, April 3, 2019

Article on Blockchain Wills

BlockchainBridget J. Crawford recently published an Article entitled, Blockchain Wills, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Blockchain technology has the potential to radically alter the way that people have executed wills for centuries. This Article makes two principal claims – one descriptive and the other normative. Descriptively, the Article suggests that traditional wills formalities have been relaxed to the point that they no longer serve the cautionary, protective, evidentiary and channeling functions that scholars have used to justify strict compliance with wills formalities. Widespread use of digital technology in everyday communications has led to several notable cases in which individuals have attempted to execute wills electronically. These wills have had a mixed reception. Three states currently recognize electronic wills and the Uniform Law Commission is drafting a model Electronic Wills Act This Article identifies some of the weaknesses in existing state statutes and the model law and considers how technology can address those problems.

This Article explores how blockchain, the open-source technology underlying cryptocurrency like Bitcoin, could be harnessed to create a distributed ledger of wills that would maintain a reliable record of a testator’s desires for the post-mortem distribution of estate assets. These blockchain instrument easily could qualify as wills under existing substantial compliance doctrine or the Uniform Probate Code’s harmless error rule. Blockchain wills would serve the true purpose of wills formalities – which is to authenticate a document as the one executed by the testator with the intention of having it serve as the binding directive for the distribution of her property. By uniting blockchain technology with the innovations of the best aspects of electronic wills legislation, a blockchain will could serve as a reliable, authentic and secure record of a decedent’s last wishes for disposition of her property.

This Article’s account has important implications for the legal profession. As financial institutions and governments have moved to develop blockchain-based solutions for the delivery of services, lawyers have lagged behind. In some legal circles, attorneys have become interested in “smart contracts” and the possibility of using blockchain to create a more accurate record of real property deeds. But most lawyers have not yet invested the requisite time and energy needed to understand how blockchain works and to develop systems that would use the technology effectively. By demonstrating how blockchain could make wills cheaper to prepare and less susceptible to tampering, this Article also points to multiple other uses for blockchain in the legal profession, including authentication of chain of ownership, record-keeping and drafting of all kinds. Even though lawyers have been slow to harness blockchain’s potential, the technology holds the promise to transform the practice of law into a form that will be unrecognizable to today’s lawyers.

April 3, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Technology, Trusts, Wills | Permalink | Comments (0)

Tuesday, April 2, 2019

Tom Petty's Widow Says His Daughters are Attacking Members of The Heartbreakers

TompettyThe late Tom Petty's two daughter, Adria and Annakim, are claiming in probate court that their father's widow, Dana York Petty, is ignoring two separate instructions of their father's will. One is that the sisters have equal share of decision-making power as Dana, and that she was required to transfer Tom's "artistic property" assets out of his trust, and into a separate company that would be jointly administered by all 3 women.

Dana says that she is the one that who runs the Estate and that the daughters are making it exceptionally difficult by attacking the surviving members of The Heartbreakers and withholding unreleased tracks of their father's. She claims that Adria sent an anger-filled emailing ranting to Benmont Tench and Mike Campbell claiming that her entire life is being "raped" and that the two do not respect her because she is a woman.

Dana wants an order from the judge asking him to appoint a day-to-day manager for the Estate, and to force Adria, in particular, to act rationally.

See Tom Petty's Widow Slams His Daughters: They're Attacking Members of The Heartbreakers, TMZ, April 2, 2019.

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

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

April 2, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Music, New Cases, Trusts, Wills | Permalink | Comments (0)

Monday, April 1, 2019

Article on Dr. Jekyll & Mr. Holmes: A Tale of Two Testaments

JekyllStephen R. Alton recently published an Article entitled, Dr. Jekyll & Mr. Holmes: A Tale of Two Testaments, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This article takes the form of an epistolary exchange across the centuries, comparing and contrasting two noted wills in Victorian literature. The first of these testaments is the final will of Dr. Henry Jekyll, in Robert Louis Stevenson’s The Strange Case of Dr. Jekyll & Mr. Hyde; this will bequeaths the doctor’s estate to his friend and attorney, Gabriel John Utterson. The second testament is the putative will of Jonas Oldacre, in Arthur Conan Doyle’s The Adventure of the Norwood Builder; this will bequeaths Oldacre’s estate to the young solicitor who drafted the will, John Hector McFarlane. Taken together, these two testaments raise the issues of the testator’s capacity and intent to make the will, undue influence and bequests to attorneys (notably to the drafting attorney), due execution of the will, and the effect of the beneficiary’s possible murder of the testator. A comparison of these two fictional Victorian-era wills remains relevant today because the legal issues that these two testaments raised in 19th century England are still very much present in 21st century America.

April 1, 2019 in Articles, Books, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, March 25, 2019

Article on Wills, Trusts, Guardianships, and Fiduciary Administration

CourtMary F. Radford recently published an Article entitled, Wills, Trusts, Guardianships, and Fiduciary Administration, 70 Mercer L. Rev. 275-288 (2018). Provided below is an abstract of the Article.

This Article describes selected cases and significant legislation from the period of June 1, 2017 through May 31, 2018, that pertain to Georgia fiduciary law and estate planning. As the most important developments in this time period revolved around the new Georgia legislation, this Article contains only a brief summary of the holdings of significant cases.

March 25, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Guardianship, New Cases, Trusts, Wills | Permalink | Comments (0)

Estate Planning is Risky Business, What Should you do?

RiskyThe future is uncertain and likewise estate planning is uncertain and fraught with unseen perils and risks. Investment returns are not guaranteed, interest rates are unquestionably going to change, and some techniques are dependent on when you die, and of course, tax laws change all too often.

The only thing that is guaranteed is that nothing is guaranteed. Estate plans need regular maintenance and check up as these alterations may demand tweaks to remain optimal. Here are a few tips to assist in mitigating risks:

  • Creating a collaborative team of financial advisors, tax professionals, and estate planners will help identify more issues with your plan, as identifying issues is the first step in resolving them.
  • Get life insurance! A policy can offset several different contingencies in your plan in case tax laws dramatically change, step up basis for assets transferred to certain trusts, and other risky situations.
  • Pay attention to the formalities and minutia of certain paperwork, and if you are not an expert - get an expert.
  • Use an institutional trustee instead of a family member or friend. The advantages of the policies and procedures of independent trustees greatly outweigh the financial aspect of paying them.
  • Establish trusts in jurisdictions that have amicable laws for them. Using these jurisdictions might reduce some of the legal, tax and other risks your planning is exposed to.
  • Like a cake, add layers upon layers to the estate plan. If asset protection is a concern, layer insurance, and umbrella policies to serve as a line of defense before trusts become involved.

See Martin Shenkman, Estate Planning is Risky Business, What Should you do?, Forbes, March 21, 2019.

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

March 25, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Estate Tax, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Friday, March 22, 2019

5 Estate Planning Strategies for Singles

SingleSingle people may have been enjoying the exotic life with no children - socking away money, getting away on numerous weekends, and focusing 100% on their career. But it may not be likely that they put much effort into their estate planning or retirement plans.

Here are 5 tips for single clients as they near retirement:

  • Execute a power of attorney and a healthcare proxy.
    • Even those without children do not live forever, though mortality may not be shouting in their face like a teenager that looks just like them. Establishing a power of attorney and a healthcare proxy will allow another person to make important financial and medical decisions for a single client, if it becomes necessary to do so.
  • Make a will.
    • With no direct descendants nor a spouse, a will is highly efficient as disposing of assets. The client can name the executor to handle the affairs, and a simple solution can be to name a revocable trust as the beneficiary of the estate.
  • Create a revocable trust.
    • The client should go ahead and establish the trust and name themselves as the primary beneficiary.
  • Fund the trust now.
    • If the client funds the trust during their lifetime, and are later incapacitated, the successor trustee will be able to use the funds for the client's care. Without it, those close to them may have to petition the local probate court to have a guardian or conservator appointed.
  • Consider estate taxes.
    • Single clients have no direct descendants, so any beneficiaries will be receiving a windfall. If giving these beneficiaries more and the government less is important, the client should consider charitable giving as a means to lower taxes.

See Christine Fletcher, 5 Estate Planning Strategies for Singles, Forbes, March 15, 2019.

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

March 22, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Estate Tax, Guardianship, Trusts, Wills | Permalink | Comments (0)

Article on Milking the Estate

MilkDavid R. Hague recently published an Article entitled, Milking the Estate, 121 West Virginia Law Review 83-134 (2018). Provided below is an abstract of the Article.

Recent Chapter 7 bankruptcy cases are exposing a widespread problem. Chapter 7 trustees are retaining their own law firms to represent them and then-in clear breach of their fiduciary duties to creditors-requesting illegitimate legal fees to be paid by the estate. This practice is immoral and particularly harmful to creditors. Indeed, every dollar paid to the trustee and his firm is a dollar that will not be distributed to creditors. The Bankruptcy Code, remarkably, allows a trustee to retain his own law firm to represent him in his capacity as a trustee. But this inherently conflicted arrangement is not a license for the trustee and his firm to milk the estate for all it is worth. While courts have recognized the dangers attendant to the trustee's retention of himself to serve as his own paid employee, they are routinely allowing it and only requiring the trustee to make one opaque showing: that the selection of the trustee's own law firm is in the "best interest of the estate."

This approach is significantly flawed. In nearly all cases, the trustee is able to satisfy the nebulous "best-interest" standard and secure employment of his law firm. However, the impropriety of such arrangement does not manifest itself until months or years later, when the trustee and his firm have already milked the estate. Instead of dealing with this issue when the damage to the estate .has already been done-or in some cases ignoring it-courts need to adopt protective measures, and this Article outlines several. Abusive fee tactics in bankruptcy will never disappear, but implementing the safeguards discussed herein will curtail the milking (and the bilking).

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

Thursday, March 21, 2019

Article on Online Tools under RUFADAA: The Next Evolution in Estate Planning or a Flash in the Pan?

ToolsJustin H. Brown and Ross E. Bruch recently published an Article entitled, Online Tools under RUFADAA: The Next Evolution in Estate Planning or a Flash in the Pan?, Probate and Property Magazine, Vol. 33 No. 2, March/April 2019. Provided below is an introduction to the Article.

Over the past five years, the estate planning process for digital assets has dramatically transformed. Much of this transformation is the result of the United Law Commission's introduction of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in September 2015, which a majority of US states and territories have adopted with some variations. RUFADAA, like its predecessor, UFADAA, was drafted with the intent to unify and clarify states laws with respect to a fiduciary's ability to access an individual's digital assets and electronic communications. However, unlike UFADAA, which presumed a decedent's consent for the decedent's personal representative to access her digital assets, RUFADAA places the burden on the decedent to provide express consent through the decedent's will or another mechanism. Under RUFADAA, an individual may use an "online tool," which is an account-specific feature that an online custodian (e.g., Apple, Google, Yahoo) may offer that enable its users to provide directions for disclosure or nondisclosure of digital assets to a designated person. Online tools are account-specific - in other words, using Google's online tool will not dictate how information held in the decedent's Apple account should be shared. Any assets that are not addressed with an online tool are subject to the terms of a testator's estate planning documents. When digital assets are not addressed by an online tool or an estate planning document, a providers terms of service agreement will dictate access and disclosure of a decedent's digital assets and electronic information.

March 21, 2019 in Articles, Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)