Wills, Trusts & Estates Prof Blog

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

Sunday, June 16, 2019

The Best Father’s Day Gift, a Father Can Give

FathersdayOn the day that is meant to celebrate fathers and the role they play in their children's lives, they usually receive the typical gifts: a stand-out tie, a shiny new grill, maybe a nice set of tools. But what about the ultimate gift that fathers can give to their children and other loved ones?

While a ballgame sounds great on the penultimate holiday for fatherhood, any real dad will tell you that the true reward is having a sense of accomplishment, in knowing you left everything on the field when providing for your family. An effective estate plan with all the appropriate and necessary documents will pass on your legacy and keeping your loved ones safe and protected even after you have passed on.

A health care proxy allows you to designate a person to make the difficult decisions if you become seriously ill or incapacitated. A living will details the end-of-life instructions to be carried out by a medical facility as it pertains to life sustaining care. Having a durable power of attorney can be established for other decisions in a time of need, such as financial decisions that are need when you cannot. Of course, no estate plan is complete with a disposition of property, so either a living trust or a will is necessary to transfer your assets as you desire.

See The Best Father’s Day Gift, a Father Can Give, OC Estate Lawyers, June 13, 2019.

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

 

June 16, 2019 in Current Affairs, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Games, Trusts, Wills | Permalink | Comments (0)

CLE on Probate and Trust Litigation

CLEThe National Business institute is holding a conference entitled, Probate and Trust Litigation, on Friday, July 12, 2019 from 9:00 AM - 4:30 PM at the Holiday Inn Philadelphia-Cherry Hill in Cherry Hill, New Jersey. Provided below is a description of the event.

Program Description

Real-World Insights for Both Estate Litigators and Planners

Fiduciary problems, family dynamics, creditor issues, unclear estate plans . . . disputes can arise from many areas of trusts and estates. Do you know how to prevent fights, settle them efficiently or move a case through court when litigation is unavoidable? Our seasoned faculty will provide you with practical instruction and tips on handling common controversies. From will contests to fiduciary litigation and more, don't miss this opportunity to build your skills - register today!

  • Learn how to handle will contests and trust fights, interpretation issues and reformations.
  • Uncover the mechanics of proving or disproving undue influence/lack of capacity.
  • Find out when and how to remove a fiduciary.
  • Explore how to resolve disputes with accountings - or prevent them from happening in the first place.
  • Discover effective ways to settle disputes to avoid costly and protracted litigation.
  • Get a refresher on litigation procedures and rules you need to know.
  • Define who your client is to avoid conflicts of interest and other problems.

Who Should Attend

This intermediate level seminar is designed for attorneys and paralegals.

Course Content

  • Wills and Trusts: Contesting, Interpreting, Reforming
  • Testamentary Capacity and Undue Influence in Litigation
  • Handling Claims Against Fiduciaries
  • Disputing Accountings, Distributions and Creditor Claims
  • Settlement Tips
  • Navigating Court Rules, Processes and Procedures
  • Applying Legal Ethics Rules and Guidelines

June 16, 2019 in Conferences & CLE, Current Affairs, Estate Administration, Estate Planning - Generally, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Thursday, June 13, 2019

Doris Day: The Tragic Last Days of a ‘Manipulated’ Hollywood Icon

DorisdayAmerica's sweetheart of the 1950s and 60s, Doris Day, passed away on May 13 at the age of 97. But those around her paint the picture of a lonely and manipulated woman that did not spend much time outside of her home, isolating herself to her bedroom and kitchen. Her only grandchild, Ryan Melcher, said that he only learned of his grandmother's death from social media. Ryan's father, Terry, had been her only child and had been adopted by her third husband, producer Marty Melcher. Doris found out that Marty had squandered her $20 million fortune after his death, forcing her to begin The Doris Day Show on CBS.

Ryan has claimed on Facebook that veterinarian-turned-manager Bob Bashara blocked him from seeing his aging grandmother and even replaced board members on her animal-rescue foundation with Bashara's direct family members. Day's representative has denied these allegations. The longtime manager has stated that the actress's will specified that she wanted no funeral service or grave marker, and that she wanted her fortune to go to the Doris Day Animal Foundation. No will has yet been probated or filed.

See Sara Nathan and Chris White, Doris Day: The Tragic Last Days of a ‘Manipulated’ Hollywood Icon, Fox News, June 9, 2019.

 

June 13, 2019 in Current Events, Elder Law, Estate Administration, Estate Planning - Generally, Film, Television, Wills | Permalink | Comments (0)

Tuesday, June 11, 2019

Tom Petty's Estate is in Chaos—and That's With a Will

TompettyThe late Tom Petty took the advice of any estate planning attorney and wrote a detailed estate plan, yet over a year-and-a-half after his sudden death in 2017, his family is still fighting over what those instructions truly mean. Amanda DiChello, a trusts and estates attorney in private client services at Cozen O’Connor in Philadelphia, points out that even with the best of intentions, wills and estates are complicated.

The rock-and-roller instructed that the management of his estate (and sizable music catalog) would be left to his widow and two daughter from a prior marriage in "equal participation." But what did Petty intend by the word equal? Does that instruction mean that each of the three parties gets to participate equally in the decision making or that the widow and daughters split the decision making fifty-fifty? The daughters, Adria Petty and Annakim Violette, filed a suit in Los Angeles against their step-mother, Dana York Petty, claiming that they are entitled to more control and are asking for $5 million in damages plus attorney's fees.

A financial advisor should make sure his or her clients have a stable and unambiguous estate plan and if a fight is foreseeable, he or she should make sure all future entanglements are considered. “Many people feel they can trust their spouses and children. Often there is peace between first and second spouses and children before someone dies, but it may not stay that way after death," DiChello commented.

See Karen DeMasters, Tom Petty's Estate is in Chaos—and That's With a Will, Financial Advisor, June 5, 2019.

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

June 11, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Music, New Cases, Trusts, Wills | Permalink | Comments (0)

Sunday, June 9, 2019

John Singleton's Daughter Files for Restraining Order Against his Pal

SingletonThe drama just keeps coming after the death of Boyz N The Hood filmmaker, John Singleton. His daughter and eldest child, Justice, 26, filed for a restraining order on Friday against Avance Smith, a close friend of Singleton's. Justice is claiming that Smith broke into the locked office of her father and stole valuables and also threatened her via texts and in person. A judge has denied the initial request and a hearing has been set for the end of June.

Justice's filing comes only a day after John's mother, Shelia Ward, made an emergency request to the courts to control his assets, estimated to be worth about $35 million at the time of his death. Supposedly the emergency request was prompted by the break-in at Singleton's office. 

Another big family drama in this epic is that the director's will was written in 1993 when Justice was an only child and was named the sole beneficiary of his estate. However, she ended up being the eldest of seven children. Under California law, children born after the execution have a legal claim to inherit, as long as there is not a provision that expressly disinherits future children. Also, some of Singleton's exes and children have hired an investigator to map out the hours leading up to his arrival at the Los Angeles hospital. There are no Uber or Lyft receipts, and he reportedly did not drive himself.

See Kevin Kayhart, John Singleton's Daughter Files for Restraining Order Against his Pal, Daily Mail, June 7, 2019.

June 9, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Film, New Cases, Wills | Permalink | Comments (0)

Saturday, June 8, 2019

Texas Statutes Now Allow a Court To Modify or Reform an Unambiguous Will

WilltestamentTexas courts have historically relied on the testator's intent on whether a will is ambiguous or not, and whether or not to present extrinsic evidence contrary to the will's instructions. If a court found that will was unambiguous, outside evidence could not be brought in by any party.

However, in 2015, the Texas Legislature created several provisions that allow a court to look at extrinsic evidence to modify the otherwise unambiguous terms of a will upon certain circumstances under Texas Estates Code § 255.451. First and foremost, only a personal representative (such as an administrator or executor of the estate) can petition a court to modify an unambiguous will. Also, the court will only allow the modification under three different circumstances: 1) it “is necessary or appropriate to prevent waste or impairment of the estate’s administration," 2) the modification “is necessary or appropriate to achieve the testator’s tax objectives or to qualify a distributee for government benefits and is not contrary to the testator’s intent,” and 3) the modification “is necessary to correct a scrivener’s error in the terms of the will, even if unambiguous, to conform with the testator’s intent.” A scrivener’s error, or mistake by the attorney writing the will, does not include a mistake of law or fact by the testator.

Overall, the court's goal is to support the testator's original intent and follow their wishes. Even if that means altering what is physically written down on the piece of paper.

See David Fowler Johnson, Texas Statutes Now Allow a Court To Modify or Reform an Unambiguous Will, Texas Fiduciary Litigator, June 6, 2019.

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

June 8, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Income Tax, New Legislation, Wills | Permalink | Comments (0)

Note on Transgender Beneficiaries: In Becoming Who You are, Do You Lose the Benefits Attached to Who You Were?

TransAshleigh C. Rousseau recently published a  Note entitled, Transgender Beneficiaries: In Becoming Who You are, Do You Lose the Benefits Attached to Who You Were?, 47 Hofstra L. Rev. 813-859 (2018). Provided below is an introduction of the Note.

Suppose William Smith, father of Joseph Smith, executes a will to leave his estate to his children. In his will, the phrase "to my son, Joseph" is used, preceding a bequest for the property. Before William dies, Joseph embraces her transgender identity, obtains a lawful name change to Julia, obtains a lawful gender marker change, and undergoes sex confirmation surgery. William dies, and his estate is divided. Is Julia still entitled to Joseph's portion of William's estate? In embracing her transgender identity, is she deprived of her right to inherit? 

The transgender identity and its relatives (transsexualism, non-conforming gender identities, and the like) are often misunderstood by the general population. As a result, transgender individuals are subject to both systemic and individual discrimination. It is in the midst of this misunderstanding that transphobia is born. Transphobia is "the ignorance, fear, dislike, and/or hatred of trans* people, which may be expressed through name-calling, disparaging jokes, exclusion, rejection, harassment, violence, and many forms of discrimination." Transphobic behaviors also include refusing to use a person's preferred noun/pronoun and the denial of services, employment, housing, and other essentials. M. Dru Levasseur states that "the source of much transphobia is a fear of difference." Cisgender individuals often maintain the lurking notion that transgender individuals are trying to be someone they biologically are not, and thus have difficulty accepting transgender individuals for who they identify as. As a community, we must recognize and respect the self-identities that transgender individuals put forth in order to break down these walls that isolate and marginalize the transgender community. Contrary to some conservative beliefs, transgender individuals do not violate the social order, nor is gender confined within the boundaries of binary sex that society recognizes. In order "for transgender people to be recognized as full human beings under the law, the legal system must make room for the existence of transgender people - not as boundary-crossers, but as people claiming their birthright as a part of the natural variation of human sexual development."

This Note explores the implications of not only a name change but also a change in gender for a beneficiary named in a will using their previous identity. Raising a question, may a transgender individual accept their bequest under the will when a decedent names a transgender individual as a beneficiary and uses that individual's birth name and gender? This Note will first talk about being transgender and the social and legal obstacles that transgender individuals face on a regular basis. It will then explore the obstacles presented if their transition occurred after a will was written using their previous identity.

June 8, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, June 7, 2019

Testator's will demonstrates his contempt for his sisters and ex-wife

McConathyAttorney Richard "Tex" McConathy died on November 27, 2015 after living a full and interesting life including being wounded in battle in Viet Nam and receiving countless decorations and awards for his service.

Tex was the last person in Texas allowed to take the Texas Bar Exam without graduating from law school. His study of law under the mentorship of a judge, also his uncle, substituted for his law degree.

In his will dated April 22, 2004 and probated in Parker County, Texas in 2015, he demonstrated how he really felt about his sisters and ex-wife when he provided:

To Carol Webb Barnes, Marge McConathy, and Mary Ann Allen, I hereby give, devise, and bequeath equally among the three my cold dead ass so that each can kiss it from now until eternity. As for the rest of my estate, I figured that you took all that you could when I was alive so you will get nothing.

Special thanks to Paula Durant, Probate Auditor for Parker County, Texas Judge Pat Deen for bringing this fascinating case to my attention.

June 7, 2019 in Humor, Wills | Permalink | Comments (0)

Florida Governor Signs Bill Authorizing Electronic Wills

E-willsThe Governor of Florida signed today legislation authorizing electronic wills. Florida now joins Nevada, Indiana, and Arizona as the fourth state to authorize wills to be in electronic form.

Follow this link to read the full text of Florida House Bill 409.

Note that this legislation will not take effect until January 1, 2020.

June 7, 2019 in New Legislation, Wills | Permalink | Comments (0)

Saturday, June 1, 2019

Article on Is My Family Constitution Unconstitutional?

ConstitutionAllison Anna Tait recently published an Article entitled, Is My Family Constitution Unconstitutional?, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Every high-wealth family should write a constitution, at least that’s what wealth managers say. Because, “[w]ithout careful planning and stewardship, a hard earned fortune can easily be dissipated within a generation or two.” A family constitution, as the name implies, is a governance document that high-wealth families create, setting forth the rules that family members will adhere to in order to protect the family fortune from various kinds of creditor claims, family feuds, and reckless investments. Wealth advisors recommend basing family constitutional design on political constitutions, in particular the United States Constitution. Nevertheless, the financial planning discourse never addresses one critical question: how successful is the analogy? This brief Article posits that the analogy between the two types of constitutions is imperfect in several significant ways and mainly because family constitutions largely ignore some of the core principles that animate a democratic constitution.

June 1, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)