(This is an updated post from December 2015)
Need a New Year’s resolutions to kick start 2017? Here is an idea you probably hadn’t considered: review your estate planning documents.
If you are like most people, you are probably thinking that reading legal documents does not sound like an even remotely enjoyable way to start a new year. But, it doesn’t have to be as unpleasant as it sounds. Reviewing your documents does not mean you have to read them cover to cover. If you know what are the most important elements, it is easy to review your will, trust, and powers of attorney regularly to ensure they still comply with your wishes. These documents not only determine who will receive your property when you die, but also likely determine who has the right to make financial and major medical decisions during your lifetime. Needless to say, it is important that you are still comfortable with the designations you have made.
To get you started, below is a basic checklist of items we suggest you review annually (make it a New Year’s tradition!).
1. Assess the changes in your life since you last updated your estate planning documents.
Have you gotten married or divorced? Had a child or adopted a child? Moved to a different state? Had a death in the family? Had a major financial event? Any of these life changes may affect your estate planning, and your documents may need to be revised. (more…)
At a minimum, we recommend that our clients review their existing estate planning documents every few years, and also when big life changes are happening. Going through a divorce is one of those times. Here are some things to consider when you are considering divorce or separation, and after your divorce is final: (more…)
In the recent decision, Pfannenstiehl v. Pfannenstiehl, the Massachusetts Judicial Supreme Court overruled the appeals court decision and concluded that assets held in a discretionary trust created by a third party, where the husband is but one potential beneficiary of the trust, is not a marital asset to be divided on divorce. (more…)
Update: 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…)
With up to $1.4 Billion at stake in Wednesday’s Powerball, those who play the lottery are busy making plans for what to do with all the money they may win. If you win it, you won’t ever have to worry about money again – right?
With some minor exceptions, the facts are the same in PLR 201525002& PLR 201525003. In these PLRs, the Grantor transferred funds to an irrevocable trust for the Grantor’s own benefit and the benefit of several charities. In each case, the trust was created in a state other than the state of residence of the Grantor. In addition to the Trustee, each trust had an Investment Advisor, a Distribution Advisor, a Charity Distribution Advisor and a Trust Protector, none of whom were trust beneficiaries, except that the Charity Distribution Advisor was the Grantor’s spouse who was a potential appointee.
The Distribution Advisor had the power to direct the Trustee as to whether to make Quarterly Distributions, Support Distributions and Special Contingent Distributions to the Grantor, and also had the power to direct the Trustee as to whether to make Quarterly Distributions to the charities.
The Grantor had a limited testamentary power to appoint the trust among her spouse and charities.
The Investment Advisor had the power to direct the Trustee as to trust investments. (more…)
In a recent bankruptcy case, Richard Lewiston unsuccessfully attempted to shelter his assets in the Lois and Richard Lewiston Living Trust (the “Trust”) from inclusion in his bankruptcy estate based on the Trust’s spendthrift provision. Here, the bankruptcy court looked to Michigan state law in applying the provisions of the Bankruptcy Code and concluded the Trust property was part of Lewiston’s bankruptcy estate. (more…)
With drafting assistance from our Washington University School of Law extern, Alexander Fersa.
It seems the California Supreme Court agrees with Cole Porter that “times have changed.”
Abrogating 50 years of binding case law, in In re estate of Duke, the California Supreme Court elected to treat wills the same as trusts are treated under the Uniform Trust Code by allowing courts to look to extrinsic evidence when determining the intent of the testator. The Court concluded that an unambiguous will may be reformed if clear and convincing evidence establishes (1) that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and (2) the testator’s actual specific intent at the time the will was drafted.
The Court determined that there is no justification for a categorical bar on reformation of unambiguous wills so long as the reformation is supported by clear and convincing evidence, which would provide adequate protection against evidentiary concerns that originally led to the bar on reformations of unambiguous wills.
In this case, Duke wrote a holographic (i.e. hand-written, unwitnessed) will in 1984, providing that all of his property was to be given to his wife, but if he and his wife died in a common disaster, his property was to go to named charities. Duke’s wife died in 1997, but Duke never revised his will after her death. (more…)
The New York State legislature is considering becoming a directed trust state. In a directed trust, the trustee is allowed to act under the advice or direction of someone else, an advisor or protector, who could make decisions regarding investments, distributions or other trust matters. Earlier this year, the New York State Senate referred a bill to its Judiciary Committee which would expressly allow grantors to establish directed trusts in New York State and sets out general parameters for such trusts. (more…)
It’s true. Even if you don’t have a will, your state has written one for you, and it serves as the default plan for individuals who die without a will (aka “intestate”). Your local Probate Code will have all the juicy details. For the most part, intestacy statutes try to mimic what the average person would have done with their assets if they had a will. For instance, if you’re single and without children, it generally reverts to your parents. If you’re married with minor children, it would generally go to the spouse with whom you had the children, and in some states (like Georgia), a spouse shares with the children. The people who receive your assets under such a statute are generally referred to as your “heirs at law”. (more…)