Professor Beyer of the Wills, Trusts & Estates Prof Blog calls this subject “Strings on Testamentary Gifts.” And though the numbers of the PNC study are interesting and hint at a lack of hand-from-the-grave-control, most of the trusts that I see that have been drafted in the last few years contain some language, even if vague, regarding a benefactor/decedent’s wishes. Some of their wishes do not contain any specific stipulations or limitations but rather express their desires regarding the character of their beneficiaries with language similar to the following:
It is my hope that my children and my other lineal descendants will be productive, independent, and financially responsible individuals, and that they will become so primarily through their own abilities and efforts, not through the financial means provided by any trust established under this instrument. For this reason, after my death, I ask the Trustee to administer the trusts so as to encourage and foster, and not supplant, those abilities and efforts. Accordingly, the Trustee is authorized to …
I find this language (which is directory only, not mandatory) greatly increases my client’s peace-of-mind regarding their children’s/lineal descendent’s potential inheritance.
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On May 10, 2007, a Suffolk County Superior Court judge in Boston ruled that “same-sex couples from New York who married in Massachusetts from May 2004 to July 2006 have a legally recognized marriage.” See Manny Fernandez, Legal Status Brings Security to Some Same-Sex Marriages, NY Times, May 22, 2007. This article explains that:
The ruling affects only a limited number of New York’s same-sex couples: those who married in Massachusetts between May 17, 2004, when that state authorized same-sex marriages, and July 6, 2006, when New York’s highest court rejected an effort to allow gay marriage.
Special thanks once again to Prof. Beyer of The Wills, Trusts & Estates Prof Blog.
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I originally heard this on NPR’s All Things Considered show this afternoon but you can find additional details on CNN and Forbes.
In a reversal, New York City’s medical examiner has officially ruled that a woman’s death was related to toxic fumes released after the Sept. 11, 2001, attacks.
Felicia Dunn Jones was working one block away from the World Trade Center on the day the towers were destroyed. She died from a lung-related infection several months later.
Its relevant here because it was Felicia’s probate attorney who originally got curious, did the research and submitted his findings to the Trustee of the 9/11 victim’s fund that eventually did award compensation to the estate.
As a result of the Coroner’s reversal her name will be inscribed on the memorial. Her addition to the list of victims brings the official death toll to 2,750.
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The wills that I use for my clients (almost) always include a provision that allows the Decedent to prepare a memorandum to their estate/Executor regarding their specific wishes about how certain items of personal property are to be distributed. The Estate Planning Practice Blog calls this “A Love Letter To Your Estate” after this article in the Seattle Post Intelligencer.
Though not legally binding these memorandum can be a great way to direct your trusted Executor on the disposition of the emotionally significant artifacts of your life.
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Professor Beyer at the Wills, Trusts & Estates Prof Blog poses this question after posting about Richard O’Neal who killed killed his mother. “He pleaded not guilty by reason on insanity and was committed to a West Virginia mental health facility.”
The issue now being addressed is whether O’Neal may still inherit from his mother. The applicable slayer statute disqualifies someone who is “convicted of feloniously killing” the person from whom the person is attempting to inherit. But, O’Neal was not so convicted. Nonetheless, his mother’s other two children claim that he should not profit from his wrongful act.
Professor Beyer links to a story here at On.Point Legal News, May 15, 2007.
Thanks again Professor Beyer!
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Planner’s Thoughts is a well written and rather scholarly blog by Larry Stratton. The senior associate at Hausman & Sosa, LLP, he specializes in estate planning at the firm. Larry is also a principal of the financial planning firm of Stratton Financial and Estate Planning located in Southern California’s San Gabriel Valley.
He’s got articles that I just don’t see on other people’s blogs. Well done Larry.
Recent Articles:
Texas: Surety Not Liable for Counsel Fees in Excess of Bond
In the recent case of Colonial American Casualty and Surety Co. v. Scherer, — S.W.3d –, 2007 WL 135969 (2007), a Texas appellate court ruled that a surety issuing an administrator’s bond was not liable for attorney’s fees in excess of the stated penal amount on the face of the bond. In that case, the stated penal sum was $30,000.
This case has some significance to California because while the Texas appellate court was applying Texas law, and was interpreting the language of the specific bond, the court cited numerous California cases in reaching its decision.
But yet a California court would probably still use a somewhat different approach given that the Bond and Undertaking Law [Cal. Code of Civil Procedure § 995.010] establishes a regime for asserting claims against bonds given in a proceeding, which would include probate matters. No matter what the bond provides there are avenues for seeking counsel fees from a surety on a “proceeding bond” if the surety fails to honor a claim in a timely manner [see Cal. Code of Civil Procedure § 996.480].
Wolves in Experts’ Clothing
California Governor Arnold Schwarzenegger has signed a bill making it more difficult to engage in reverse mortgage scams. Under Senate Bill 1609, reverse mortgage applicants will be required to receive independent advice concerning the pros and cons of the loan from an independent counseling agency. The agency would not have an interest in the loan transaction.
According to a September 6, 2006 Oakland Tribune article written by Becky Bartindale, the idea for the law came from a real-live incident of loan fraud:
The idea behind Senate Bill 1609 came from Shirley Hochhausen, managing attorney for Community Legal Services in East Palo Alto, as part of Simitian’s annual “There Ought to be a Law” contest. Hochhausen proposed the measure after seeing too many clients such as Johnny Damon, 66, who is now at risk of losing his East Palo Alto home of 34 years.
Damon, who worked as a cement finisher for the city of Palo Alto, was sold a $200,000 reverse mortgage last September. Damon bought his home for about $50,000 in 1977, and it is now worth about $700,000.
But according to a lawsuit filed last month, the brokerage company arranged a traditional mortgage, unbeknownst to Damon.
So instead of receiving the income he was counting on, the suit alleges, Damon was stuck with monthly loan payments he cannot afford, and the president of the brokerage company absconded with $190,000 in loan proceeds.
Hat tip to Prof. Beyer for bringing this to my attention. Also, Julia Wei of the Dirtlaw Blog posted a good analysis of this statute on her blog.
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This story about “[a] sperm donor who helped a lesbian couple conceive two children [being] liable for child support” has been all over the place recently. Its interesting but the unique facts should restrict its precedent-setting-potential.
What makes it even more interesting (and relevant to this blog) is the donor is now deceased “raising the issue of the liability of the estate for child support from the time of his death until the children reach majority in approximately a decade.” (<-- thanks to Professor Bayer for his insight)
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Apparently “[a] British judge admitted on Wednesday he was struggling to cope with basic terms like “Web site” in the trial of three men accused of inciting terrorism via the Internet.”
“The trouble is I don’t understand the language. I don’t really understand what a Web site is,” he told a London court during the trial of three men charged under anti-terrorism laws.
Prosecutor Mark Ellison briefly set aside his questioning to explain the terms “Web site” and “forum.” An exchange followed in which the 59-year-old judge acknowledged: “I haven’t quite grasped the concepts.”
(I was directed to the story by this Slashdot post.)
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Fortune Magazine reports here about the potential fate of Helen Walton’s will that I previously posted about.
Helen and her late husband, Wal-Mart founder Sam, always appeared to be heading toward large-scale donations. But when Sam died in 1992, most of his money passed to Helen. And though she increased her giving to an extent, the Waltons remained – as critics have noted – a relatively small force in philanthropy.
That is going to change, and the money will come from Wal-Mart (Charts, Fortune 500) shares. On March 30, according to Wal-Mart’s just-published proxy statement, Helen owned only about $37 million of Wal-Mart shares directly. But the family’s true vault of wealth is a company called Walton Enterprises LLC, which holds about 1.68 billion Wal-Mart shares, worth $82 billion.
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Just added The California Tax Attorney Blog to my Blogroll. Published my Mitchell A. Port the blog has practical information (such as today’s post – “I Just Received A Notice Of Deficiency From The IRS – A 90-Day Letter – What Do I Do?”) as well as the purely educational posts on recent tax cases/decisions worth noting (e.g. “California Dentist Sentenced To Prison For Tax Fraud”)
Its a great looking blog too… Easy to read and navigate. Thanks Mitchell! Keep up the great work.
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