Monday, May 2, 2016

34997441Update: According to media sources, a lawyer for Bremer Bank and Trust, the corporate fiduciary appointed to administerPrince’s estate,  said the bank is continuing to search for a will and the judge in the Court, Judge Kevin W. Eidge, stated “We are not finding that there’s no will, but that no will has yet been found.”

The following was originally published on April 28, 2016.

As we’ve all seen in the news, musician Prince passed away on April 21, 2016 at the age of 57.  According to news sources, on April 26, just five days later, one of Prince’s six siblings, his sister Tyka Nelson, filed documents with the Carver County probate court stating “I do not know of the existence of a Will and have no reason to believe that the Decedent executed testamentary documents in any form.”  News sources have gone crazy, announcing that Prince died without a Will directing who should inherit his estate and therefore his six siblings will inherit everything.  But is this actually true?  Maybe, maybe not.

We don’t know about you, but, except for the fact that this is what we do for a living, our brothers (we each only have one sibling) would probably have no idea if we have a Will (or other estate planning) in place.  Maybe he would get around to going through all of our files to see if we have one stored somewhere or find the name of our lawyer in six days, but that’s pretty unlikely, given all of the things that typically take place immediately after someone dies (think, funeral, grieving, etc.).  Tyka may be absolutely correct – We’re not saying she’s not, but we don’t think that her statement that she doesn’t know of a Will conclusively means there isn’t one.  As of yesterday, TIME Magazine online reported that Bremer Trust Company was appointed by a judge to temporarily oversee Prince’s estate for six, which indicates that the court is not closing on the door on a possible Will being produced. (more…)

Friday, December 20, 2013

With research and drafting assistance from Washington University extern, Kelsey Delong.

In Williams v. Hubbard, et. al., the Missouri Court of Appeals addressed the issue of whether a beneficiary of a decedent’s estate would be entitled to funds from the decedent’s account if the payable on death (“POD”) beneficiary or joint owner of the account was found to have procured the beneficiary or ownership interests through undue influence. In this case, the court found that the beneficiary could have rights to some of the decedent’s multiple accounts, but not all of them.

In this case, Betty Margaret Reynolds (“Betty”) hired Respondent Kenneth Nelson to draft several of her estate planning documents, including a beneficiary deed, a 2000 Will, and a 2006 Will. The beneficiary deed named Appellant Eric Williams as the sole beneficiary of certain real estate owned by Betty. The 2000 Will drafted named Norma Lamp and Erma Baughman as equal beneficiaries. The 2006 Will named Respondent Sandra Nelson and Appellant Eric Williams as equal beneficiaries. (more…)

Wednesday, November 27, 2013

Originally posted on bryancavefiduciarylitigation.com

Testators may want to keep careful track of who has copies of their will and where those copies are.  If only a copy of a will – and not the original – is found, it may raise a question about whether the testator destroyed the original in an attempt to revoke it.  Such was the argument made by the caveators in Johnson v. Fitzgerald.  Let’s see why the Georgia Supreme Court felt like a copy was good enough to admit to probate in solemn form.

The executor of an estate offered a copy of a will for probate in solemn form, requesting that it be admitted to probate upon proper proof.  The original could not be found.  The testator’s heirs at law filed a caveat alleging that the will had been revoked by the testator’s destruction of it.

Under Georgia law, if the original of a will cannot be found for probate, there is a presumption that the testator intended to revoke the will.  But this presumption can be overcome if a copy is established by a preponderance of the evidence to be a true copy of the original and if it is established by a preponderance of the evidence that the testator did not intend to revoke the will.  Here, there was “ample evidence” that the testator intended for provisions in his will to continue in force.

Under the propounded will, $50,000 was bequeathed to a church for the use of its cemetery fund, $50,000 was bequeathed to an individual, and the will named a trust which benefited a foundation as the residuary beneficiary.  The Georgia Supreme Court highlighted the following evidence that supported a conclusion that the testator did not intend to revoke the will:

– The testator executed a document guiding the trust referenced in the will, and he later amended the trust;

– In discussions with his attorney about the trust amendment, the testator understood that his assets had grown to a point that the church named as the primary beneficiary of the trust might not have need for the full amount, and he wanted to give the trustees of the trust the flexibility to fund charitable contributions from the money that would pour over from the estate to the trust;

– The testator told the pastor of the church that he was leaving money for the cemetery fund in his will;

– The testator expressed disdain for what he considered his relatives’ greed, stating that he did not wish for them to have his money; and

– Prior wills were consistent with the propounded will insofar as they left money for the cemetery fund and excluded the caveators.

Thursday, May 9, 2013

The U.S. District Court in Minnesota, in Hall v. Metropolitan Life Insurance Company, D. Minn., No 0:11-cv-01269-DWF-LIB, 1/15/13, declined to give any effect to the fill in the blank form Will completed at the direction of Dennis Hall (the “Decedent”) by the Decedent’s daughter that attempted to dispose of the proceeds of the group term life insurance policy provided through the Decedent’s employment.

The Decedent had designated one of his four children as the beneficiary of his employer-provided life insurance policy in 1991. He then married Jane in 2001, but did not change the beneficiary of this life insurance policy. In early 2010, Decedent was diagnosed with cancer. Sometime after being diagnosed with cancer, Decedent notified his employer that he wanted to change his beneficiary, and his employer-provided him with a change of beneficiary form, but Decedent never returned the form to his employer. (more…)

Thursday, December 1, 2011

A Georgia court in a recent case, Villas at Stone Mountain Condo. Ass’n, Inc. v. Blair (Ga. App., 2011), No. A11A0912 (the “Blair Case”), held that the children and heirs of a decedent owed the homeowner association fees on the decedent’s condominium despite the fact none of the heirs wanted the condominium. The fees accrued between the decedent’s death and foreclosure of the condominium by the mortgage company.

In the Blair Case, the decedent died without a Will and the decedent’s children (also her heirs under Georgia law) never opened an estate administration with the probate court nor signed any documentation to disclaim ownership of the condominium. When a Georgia resident dies without a Will, which is known as an intestacy, title to real property automatically vests in the decedent’s heirs effective as of date of death subject to an administration of the estate. An heir may decline an inheritance if proper procedures are followed. While an heir is not liable for the debts incurred by a decedent prior to death, an heir is liable for ongoing expenses of any property inherited from the decedent.

Many individuals are intimidated by the administration of a decedent’s estate, or the probate process, and often feel that the government or local court system places too great a burden upon them after losing a loved one, particularly when the estate is small and the procedure appears unnecessary. Our current system of ownership, however, requires a title holder to property. When an individual dies, probate provides a temporary title holder of property, which does not pass by law or contract, and a standard procedure to collect assets, pay debts and expenses and ultimately distribute property to the proper beneficiaries or heirs. (more…)

Friday, October 21, 2011

For those of you who are named as Executor or Personal Representative under the Last Will and Testament of a friend or loved one who recently passed away, below is a simple “to do” list that lays out steps you should take in preparation for your initial meeting with an estate planning attorney. Please realize that this list is not exhaustive! Rather, it is intended to help you gather necessary materials and take actions that may enable you and the estate administration attorney to streamline the estate administration process.

  • Cancel any club memberships in the decedent’s name.
  • Prepare a list of all assets owned by the decedent and indicate whether those assets were held in the decedent’s sole name, in the name of the decedent’s revocable trust (if applicable), or held jointly with another person.
  • Determine whether the decedent had any safe deposit boxes and, if so, prepare an inventory of what items were held in them (if you know this).
  • Obtain copies of statements for the decedent’s bank and brokerage accounts for the month in which the decedent died and for the month following the month in which the decedent died. If possible, have the financial institution prepare a statement that shows each such account’s balance on the date of the decedent’s death, as well as a detailed list of the assets in the account on the decedent’s date of death.
  • Gather copies of the decedent’s federal and state income tax returns for the three years prior to death.
  • Gather copies of all prior gift tax returns, if any.
  • Gather statements for all dividend reinvestment plans, if any.
  • Gather copies of form 1099s and year-end tax summaries for the year in which the decedent died.
  • Obtain copies of the deeds for any properties owned by the decedent or that the decedent held jointly with someone else.
  • Obtain copies of any car titles and vehicle information numbers (VIN) for automobiles, boats, etc., owned by the decedent.