Thursday, November 5, 2015



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…)

Friday, October 23, 2015


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…)

Wednesday, October 14, 2015

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…)

Tuesday, May 26, 2015

statuteoflibertyThe 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…)

Monday, February 16, 2015

GTY_whitney_houston_bobbi_kristina_brown_sk_140325_16x9_992It’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…)

Monday, December 1, 2014

177855670When a will contains a so-called no contest clause or in terrorem clause that would cause a beneficiary to lose his or her interest in the deceased’s estate in the event the beneficiary contests the validity of the will, the court is often called upon to determine whether to enforce the forfeiture against the beneficiary if he or she loses the will contest. Just such an issue faced the Mississippi Supreme Court in Parker v. Benoist.

In this case, Bronwyn Benoist Parker (“Parker”) filed a will contest, contesting the validity of her father’s 2010 will. The 2010 will changed the disposition of the father’s estate from an equal division between Parker and her brother, William Benoist (“Benoist”), to a disposition where Benoist received a significantly greater portion of their father’s estate and Parker received a significantly lesser portion of the estate. (more…)

Thursday, May 22, 2014


Considering creating a do-it-yourself Will to save money?  A recent Florida Supreme Court Case, Aldrich v. Basile, should make you reconsider.  (more…)

Monday, February 17, 2014



Many people in their 20s and 30s are more interested in checking off a bucket list than addressing important issues related to estate planning. Young professionals are already quite busy juggling all sorts of concerns – new jobs, new families, new home, adjusting to a new stage of life, but few include estate planning on this list. Despite the popular mantra from Ke$ha to “live like you’re going to die young”, few young adults actually anticipate the possibility of doing so. The following are a few simple steps to enable you to ease the burden on loved ones before life becomes even more complicated.

1. Who do you want to receive your stuff? Put it in writing.

Estate planning does not just involve mass amounts of money – we all have assets in some form, and they need to go somewhere when we die. Beyond real property, you have a lot of “stuff” – various bank accounts, furniture, life insurance policies, vehicles, hobby gear, jewelry, clothing, retirement accounts, pets… Without a valid will, all of your “stuff” will likely pass to the designated person under your state’s intestacy statute. If you don’t know who that may be, it’s worth finding out. For most unmarried individuals, their “stuff” will likely go to their parents, who probably won’t appreciate your snowboard as much as a good friend. Maybe you know someone could use your kitchen table, someone who your dog gets super excited to see when he/she comes over, or a roommate that you help accessorize every morning with your jewelry? Did you and brother draw straws over a piece of furniture you inherited? Take the opportunity to be thoughtful and generous towards others in your life by writing them into your will. (more…)

Monday, February 10, 2014


Recent news stories such as that of Marlise Muñoz in Texas and auto racing star Michael Schumacher serve as a reminder of the importance of discussing your wishes with others regarding end-of-life care. Select someone you trust to make those decisions on your behalf in case you become incapacitated, and sign the documents required to empower that person to act for you if necessary.

Most Americans say they want to die at home, surrounded by family and friends. But data from Medicare shows only about a third of elderly patients die this way. Taking a few small steps now can go a long way toward ensuring that your wishes are respected when the time comes.

You can start by talking to your family, your friends, and your doctors about your wishes in terms of death-delaying care in the event you are unable to make those decisions for yourself. Do you want “extraordinary” measures taken to prolong your life, such as major surgery or a mechanical respirator? What about artificial nutrition and hydration? Under what conditions? Is the cost of procedures to be taken into consideration? Do you wish to remain at home rather than be transferred to a hospital or nursing facility? Do you want to be an organ donor? Do you want to be buried or cremated? For help getting the conversation started, visit The website was launched last year for precisely this purpose. It provides invitation language, reading materials, conversation prompts, and hosting tips, among other things.

After you’ve shared your wishes with others, it’s important to select the person (or persons) you would like to have act on your behalf, if necessary. Typically referred to as an “agent,” a “health care surrogate,” or an “attorney-in-fact for health care decisions,” this person is authorized under an advance directive or a healthcare power of attorney to communicate with your physicians and make medical decisions for you if you are incapacitated. This should be someone you trust and who knows your wishes regarding medical treatment and end-of-life care and will be able to make decisions for you in accordance with those wishes. Typically you would designate only one person at a time to serve as your attorney-in-fact for health care decisions. However, you may be able to designate multiple individuals as your attorneys-in-fact for health care decisions. If more than one person is designated – my three children acting jointly, for example – consider whether any one or more of the persons designated may act alone, or if you want decisions made by majority rule. And be sure to appoint one or more successor attorney(s)-in-fact for health care decisions, to serve if your first choice is unable or unwilling to serve.

Put it in writing. According to the New York Times, only about 47% of Americans over age 40 have advance directives or living wills. State law governs what you will need in order to authorize another person to make medical decisions for you. Depending on your state, you may need what’s called an advance directive, a living will, and/or a healthcare power of attorney. A good resource for state forms and other information related to end-of-life issues is For questions regarding how to complete forms, you should consult your attorney.
Revisit and update your documents periodically. Have your wishes regarding medical treatment or end-of-life issues changed? Are the people you designated as your attorneys-in-fact and successors still aware of your wishes and able to act on your behalf? Have you moved to a new state? State requirements differ, so it’s important to sign documents that conform to your new home state’s specifications when you move.

Not surprisingly, doctors are more likely than the rest of us to have advance directives. This is one easy lesson in medicine that doesn’t require an M.D.

Wednesday, November 27, 2013

Originally posted on

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.