Articles Posted in Estate Planning

Estate planning attorneys are frequently asked a troubling question: what’s the quickest, cheapest, and easiest way to just avoid probate altogether? Of course, you can never expect an attorney to provide a blanket response to that question. It is similar to asking your doctor, “What’s the quickest, easiest, and cheapest way to avoid heart disease?” The answer in both cases will undoubtedly depend on many things. For the doctor to give an informed response, he or she would need to perform blood tests, get some idea of your history, lifestyle choices, eating habits, family history, and so forth.

The same is somewhat true of offering a comprehensive estate plan. It is, after all, designed to protect you and your family later. So, your attorney will likely need to know your net worth, what real estate you own, your relationship with your children, siblings, and other relatives, your goals, career, income, and your level of health. These are just a few of the issues that go into deciding how to properly establish your estate plan. This warrants discussion, because people continue to find themselves engulfed in painful litigation against their own family, often despite good intentions.

Every year many Americans are fooled into choosing quick fixes to “avoid probate.” In many ways, a complete misunderstanding of the probate process has perpetuated this mentality. In fact, web-based “self-help” legal services are often the worst culprit. But if handled properly by an experienced attorney, probate can be a powerful and straightforward process for settling a decedent’s affairs. Some sadly choose to simply open joint bank accounts with an adult child or close friend and then place all of their money in those accounts with simple instructions regarding how they want the money spent upon death. Many people also do the same thing with their homes, automobiles, and other types of property, thereby completely avoiding probate. But this is not a wise strategy.

The Financial Industry Regulatory Authority (FINRA) issued a new alert regarding the transfer of brokerage accounts upon death. This report has important information for people who are considering using brokerage accounts as part of their estate plans. The alert informs current brokerage account holders, family members, and their other beneficiaries about the processes involved when the account holder passes away.

What is FINRA?

FINRA is the largest independent regulator in the world for all securities that do business in the United States. The organization’s main purpose is to provide investor protection and ensure market integrity through effective and efficient regulation. Some of FINRA’s responsibilities include registering and educating industry participants, examining security firms, writing and enforcing rules, and educating public participants in the market. FINRA also offers dispute resolution for security firms and participants in the securities market.

Most of the estate planning tips and tricks revolve around plans for couples; however, a single person’s estate plan is just as important. In many circumstances, the way that a single person structures their estate plan and who is named differs from an estate plan of a couple. Just as with couples, if a single person fails to properly plan there can be dire consequences for an estate.

Dying Without a Will

If a single person dies without a will, then they are considered intestate. All of the assets in their estate go into probate, and the court will disperse the assets according to state law. Because there is no spouse, typically the court will split the estate between any children, parents, and siblings. If there are no close living relatives, then all of the assets in the estate are forfeit to the state. This worst case scenario highlights the importance of titling various assets, beneficiary designations, and how an estate plan can help a single person.

Riley B. King, also known as famed blues musician B.B. King, passed away on May 14 and left behind a contentious estate battle between his children and manager. One of his daughters, Patty King, claimed in an interview that her father did well by his children and is now leading the charge against her father’s business manager, LaVerne Toney, of 39 years. Five of his eleven surviving children have all made claims of serious wrongdoing against the manager.

Accusations against the Manager

Patty King and her half-sister, Karen Williams, are leading the case against Ms. Toney. Some claims include not allowing the children to see Mr. King, providing improper medical care, and possibly even poisoning the famous musician in his final days. Because of the claims of possible homicide, the coroner conducted an autopsy and is awaiting toxicology results before rendering a final opinion. However, these types of tests could take weeks to return a result.

Recent research shows that employees still working in Generation X do not have the overwhelming desire to retire. According to a new study released by Ameriprise Financial, an overwhelming 73% of people from Generation X plan on working in some capacity after they retire. However, interestingly enough the reason is not for financial purposes but for finding fulfillment.

Results of the Study

Called the “Retirement 2.0” study, the researchers at Ameriprise Financial found out some interesting qualities about the Generation X workforce. The vice president in charge of the research said that “they don’t have an on-off switch in terms of leaving the work force and instead anticipate a gradual evolution into this new phase of life, which really sets this generation apart.”

The Supreme Court of South Dakota recently ruled on whether an estate should be probated intestate despite the existence of a copy of a will. This case is interesting because unlike most cases of lost wills, in this instance the spouse of the deceased wanted the copy revoked and the estate probated as if a will never existed, and relatives wanted the copy of will to stand on its own.

Facts of the Case

In the case In re Estate of Deutsch, Delbert Deutsch died on August 23, 2012. After an exhaustive search, his wife Marcelina found a copy of his 2001 will but could not locate the original. Despite finding the copy, Mrs. Deutsch petitioned the probate court to rule that the estate was intestate and apply the state laws regarding inheritance of an intestate estate.

The daughter of the late iconic radio DJ, Casey Kasem, is fighting for new guardianship laws that would prevent future instances of elder abuse and neglect similar to what her father endured in his final days. Kerri Kasem has gone on record as saying that she feels like her father’s death could have been prevented if she and her siblings were able to see their father and better monitor his care. Unfortunately, at the time that they needed it there was no law in place to help.

Case of Casey Kasem

When Casey Kasem’s health deteriorated, his current wife and stepmother to his adult children decided to move him from the assisted living facility where he was being cared for to an undisclosed location. When his children finally got the court to compel her to release his location, he was found on an Indian reservation in poor health. He was suffering from bed sores, a urinary tract infection, and sepsis.

The Supreme Court of North Dakota recently ruled on the issue of a fiduciary self-dealing when he was one of the heirs inheriting from an estate. The case highlights the importance of creating clear boundaries when delineating responsibilities of an estate as well as ensuring that all of the proper documents are processed in any type of real property or estate dealings.

Facts of the Case

In the case of Broten v. Broten, James Broten, Louise Broten, and Linda Shuler were all children of Olaf and Helen Broten. The parents owned around 480 acres of farmland, and in 1979 they executed a quitclaim deed that gave Olaf Broten sole ownership in the real estate. He then entered into a contract for deed with his son, James, agreeing to convey the farmland for $200,000 plus six percent interest paid through 2006. The contract was prepared by James’ attorney but never recorded. At the same time, the parents executed a will that placed the farmland in trust, with the mother receiving income for life, and the principal to be distributed to the children equally upon her death.

A California Court of Appeals recent ruling may provide a way to fund a revocable trust that could provide for easy probate avoidance. Although this case applies specifically to California law, it does also give a template for other states to apply a similar probate avoidance technique for the revocable trusts under their law. By using broad conveyance language in a trust instrument to avoid probate on the trust settlor’s assets, this process can work even if trust funding process was not set up perfectly.

Facts of the Case

In the case of Ukkestad v. RBS Asset Finance, Inc., Larry Mabee executed a trust in December 2012 and died about two weeks later. He had appointed himself as trustee and also enacted a will that which contains a pour-over provision that gave the residue of the estate to the trustees of the trust. At the time of his death, Mr. Mabee owned two parcels of real estate that were titled in his own name.