Probate

When a will won’t work

Yahoo Finance discusses what a will cannot do:

A will can’t avoid probate, the legal process that typically follows death. In probate, your will becomes a public record and the court supervises the distribution of your estate.

A common way to bypass probate is to create a revocable living trust and then transfer ownership of your real estate, accounts and other property into the trust. You retain control, but upon your death, the person you name as your successor trustee can distribute your property without a court’s involvement, says Matt Palmer, associate product counsel at online legal site LegalZoom.

By |2021-11-05T13:20:30-07:00November 1st, 2021|

Standing and Error Correction in Probate

Wills, Trusts & Estates Prof Blog:  “Estate and guardianship proceeding are in rem and decisions are binding on the world, often without personal service or direct notice. Error correction in probate is essential because incorrect decisions can adversely affect administrations for years in the future. The Texas state legislature recognizes the importance of inheritance and guardianship and progressively expanded probate jurisdiction, including granting statutory probate courts exclusive jurisdiction over probate matters, and concurrent jurisdiction with district courts over trust and other matters. Statutory probate courts even have the power to transfer cases in other courts in other courts around the state to their own court when the proceeding affects a pending administration – the power affectionately known by practitioners as the “reach-out-and-grab” power. The legislature and courts recognize the difference between a “normal” lawsuit and an ongoing, continuing estate or guardianship administration and the need to accommodate the ability to correct errors well beyond the typical thirty days after an order is signed. The first analysis in every probate proceeding is to determine the parties who have standing in an estate.”

By |2018-10-01T13:19:12-07:00October 3rd, 2018|

An Estate Planning Checklist to Facilitate Wealth Transfer

Studies have shown that 70% of family wealth is lost by the end of the second generation and 90% by the end of the third.

Help your loved ones avoid becoming one of these statistics. You need to educate and update your heirs about your wealth transfer goals and the plan you have put in place to achieve these goals.

What Must You Communicate to Future Generations to Facilitate Transfer of Your Wealth?

You must communicate the following information to your family to ensure that they will have the information they need during a difficult time:

  • Net worth statement, or at the very minimum a broad overview of your wealth
  • Final wishes – burial or cremation, memorial services
  • Estate planning documents that have been created and what purpose they serve:
    • Durable Power of Attorney, Health Care Directive, Living Will – property management; avoiding guardianship; clarifying wishes regarding life-sustaining procedures
    • Revocable Living Trust – avoiding guardianship; keeping final wishes private; avoiding probate; minimizing delays, costs and bureaucracy
    • Last Will and Testament – a catch-all for assets not transferred into your Revocable Living Trust prior to death, or the primary means to transfer your wealth if you are not using a Revocable Living Trust
    • Irrevocable Life Insurance Trust – removing life insurance from your taxable estate; providing immediate access to cash
    • Advanced Estate Planning – protecting assets from creditors, predators, outside influences, and ex-spouses; charitable giving; minimizing taxes; creating dynasty trusts
  • Who will be in charge if you become incapacitated or die – agent named in your Durable Power of Attorney and Health Care Directive; successor trustee of your Revocable Living Trust and other trusts you’ve created; personal representative named in your will
  • Benefits of lifetime discretionary trusts created for your heirs:
    • Fosters educational opportunities
    • Provides asset, divorce, and remarriage protection
    • Protects special needs beneficiaries (if properly drafted)
    • Allows for professional asset management
    • Minimizes estate taxes at each generation
    • Creates a lasting legacy for future generations

  • Overall goals and intentions for inheritance – what the money is, and is not, to be used for (in other words, education vs. charitable work vs. vacations vs. Ferraris vs. business opportunities vs. retirement), and who will be trustee of lifetime discretionary trusts created for your heirs and why you’ve selected them

  • Where important documents are located – this should include how to access your “digital” assets

  • Who your key advisors are and how to contact them

How Can Your Professional Advisors Help You Communicate Your Wealth Transfer Goals?

Your professional advisors are well-positioned to help you discover your wealth priorities, goals, and objectives and then communicate this information to your heirs.  This, in turn, will prepare your heirs to receive your wealth instead of being left to figure it out on their own and, as statistics have shown, lose it all.

We are available to assist you with figuring out your wealth transfer goals, putting a plan in place to achieve these goals, and effectively communicating this information to your loved ones.

By |2016-12-13T20:33:27-08:00November 18th, 2014|

New Arizona Law Increases Small Estate Exemptions from Probate

Arizona Senate bill SB 1232 will become effective September 13, 2013.  This new law modifies Arizona Revised Statutes Section 14-3971 to provide that the small estate probate exemption amount for personal property will increase from $50,000 to $75,000 and the exemption for real property will increase from $75,000 to $100,000.  To learn more about Arizona probate and small estate exemptions go to Arizona Probate Law.

By |2016-12-13T20:33:27-08:00August 20th, 2013|

California Recognizes Tort of Intentional Interference with Expected Inheritance

California has finally joined the majority of states and recognized the tort of intentional interference with expected inheritance (“IIEI”).  This adoption was done by the California Court of Appeals based on the fact that the IIEI claim is consistent with other California laws, the fact that of the 42 states that have considered adopting an IIEI claim, 25 states have adopted the claim, that the US Supreme Court has called IIEI as “widely recognized” tort, and other public policy considerations.

The ruling came out of the California Court of Appeals for the Fourth Appellate District, after the deceased’s longtime partner was denied any inheritance by the California probate court.  Brent Beckwith was in a committed relationship for nearly 10 years with partner Marc Christian MacGinnis.  MacGinnis had no living family members other than his sister, Susan Dahl.  But MacGinnis was estranged from his sister.

At one point, MacGinnis showed Beckwith a will on his computer that divided his $1 million plus estate between Beckwith and Dahl.  MacGinnis never signed the will.  MacGinnis wanted to print and sign the will, but was never able to do so.  MacGinnis later fell ill.  He asked Beckwith to print the will.  When Beckwith couldn’t locate the will, MacGinnis asked Beckwith to prepare a new will, based on the distribution plan MacGinnis had already discussed with Beckwith.  When Beckwith called Dahl to discuss the will, Dahl claimed that she had friends who were attorneys and she would have them draft a trust for MacGinnis, which she claimed was more appropriate for her brother.   She told Beckwith not to give the new will to MacGinnis for signing.  A few days later, MacGinnis went in for surgery.  The doctors told Dahl that MacGinnis may not recover from the surgery.  However, because Beckwith “was not family”, the doctors did not tell him about the potential risks of the surgery.  Dahl did not share this information with Beckwith nor did she ever give MacGinnis any trust documents to sign.  MacGinnis later died without signing any estate planning documents.

Since he did not have an estate plan, Dahl was able to successfully claim that she was the sole heir to MacGinnis’ sizable estate.  Beckwith disputed Dahl’s claims, but since California’s rules of intestate succession do not recognize MacGinnis’ partner of nearly 10 years, Beckwith got nothing.  Beckwith later sued, claiming that Dahl had improperly interfered with his expected inheritance.  The result was the court recognizing a new claim for IIEI.

In California, a plaintiff may plead an IIEI claim only if a probate remedy is not available.  The California Court identified the five specific elements that a plaintiff must allege to state a claim for IIEI:

1. Expectation of inheritance. The plaintiff must plead that he or she had an expectancy of receiving an inheritance.

2. Causation. “[T]here must be proof amounting to a reasonable degree of certainty that he bequest or devise would have been in effect at the time of the death . . . if there had been no such interference.”

3. Intent. “[T]he defendant had knowledge of the plaintiff’s expectancy of inheritance and took deliberate action to interfere with it.”

4. Tortious interference. “[T]he interference was conducted by independently tortious means, i.e., the underlying conduct must be wrong for some reason other than the fact of the interference.”

5. Damage. “[T]he plaintiff must plead that he was damaged by the defendant’s interference.”

 To read the entire story, visit Estate of Denial.

By |2012-07-09T12:37:52-07:00July 9th, 2012|

If You Like Your Privacy, Create A Trust

Should you create a will based estate plan or a trust based estate plan?  It depends on your goals.  While a will and a trust serve some of the same functions, some of the major differences become apparent when you examine how each is administered.  A will must be entered into probate.  Probate is a court proceeding, which means that documents filed during that court proceeding become public record.  This means that when a person’s will is admitted to probate, it becomes a public record, just as we saw in Joe Paterno’s case.  On the other hand, trusts do not need to be admitted to probate.  This is because if a trust is properly funded (meaning a person’s assets are all transferred into their trust) then probate is unnecessary.  One of the major purposes of probate is to effectuate the transfer of property from the deceased to his or her heirs.  By using a trust, probate can be avoided since the deceased already transferred property out of his or her own name and into the name of the trust.  Once a person who has a trust passes, the terms of the trust take over and the deceased’s property is transferred according to the terms of the trust.

Any estate planning lawyer worth their salt will always inform clients that a trust is the best possible option.  However, if someone decides to go with a will based estate plan, here is an explanation for “Dummies” about one needs to know about probate:

Probate is a term that is used in several different ways. Probate can refer to the act of presenting a will to a court officer for filing — such as, to “probate” a will. But in a more general sense, probate refers to the method by which your estate is administered and processed through the legal system after you die.

The probate process helps you transfer your estate in an orderly and supervised manner. Your estate must be dispersed in a certain manner (your debts and taxes paid before your beneficiaries receive their inheritance, for example). Think of the probate process as the “script” that guides the orderly transfer of your estate according to the rules. (For more info, see What’s a Probate Estate All About?)

Many people think that probate applies to you only if you have a will. Wrong! Your estate will be probated whether or not you have a will.

•With a valid will: If you have a valid will, then your will determines how your estate is transferred during probate and to whom.

•Without a valid will: If you don’t have a will, or if you die partially intestate, where only part of your estate is covered by a valid will, the laws where you live specify who gets what parts of your estate.

So read on for a few important points about probate you need to know.

By |2016-12-13T20:33:28-08:00June 21st, 2012|

Probate Dispute Costs Estate $162M

For more than 26 years, a probate battle has raged over the estate of wealthy Connecticut businessman Francis “Hi Ho” D’Addario.  Before D’Addario died in 1986, he prepared a will that distributed his estate, valued as high as $162 million, to his wife and five children.  Between lawsuits and probate laws that fail to protect against abuse, 26 years later the D’Addario will is still pending before a probate court.  Even worse, when the case was unsealed last fall, it was found to be insolvent.  But where did $162 million go?  Estate of Denial ponders this question:

On a rainy and foggy March night in 1986, a small plane crashed outside of Chicago, killing F. Francis “Hi Ho” D’Addario, one of the most prolific and colorful industrialists of the 20th century in Connecticut.

Successful and wealthy, D’Addario was a 63-year-old Bridgeport businessman who had a will that distributed his substantial estate – valued at as much as $162 million — among his wife and five children.

It was a complicated matter. D’Addario Industries was diverse, from construction and paving to real estate, television and gambling to the Brakettes, a professional women’s softball team. That was nothing, however, compared to the mess that awaited in Connecticut’s probate courts.

 

 

By |2012-06-21T16:07:59-07:00June 21st, 2012|

Joe Paterno’s Will Unsealed

After Joe Paterno’s death, his estate was admitted to probate.  Typically, documents filed in a court proceeding are public record.  If a Will was filed as part of a probate case, that too would normally be public record.  However, Joe Paterno’s family requested that his Will was sealed, which the court later did.  If someone had a Will but not a Trust, I can understand why they might want to do this.  Joe Paterno had a sizable estate and perhaps the family didn’t want the world to know about his plans for distribution.  Recently, Paterno’s Will was unsealed.  Turns out, Joe had already planned for this eventuality by creating a Trust.  Paterno’s Will was a typical “pour over” Will, meaning that any asset that he owned that was not already in his Trust was “poured” into his Trust.  A pour over Will typically doesn’t list what these assets are, but instead functi0ns more as an all encompassing provision by transferring assets that didn’t quite make it to the Trust.  The meat of Paterno’s estate plan and the part everyone wants to see is the Trust.  Unlike Wills, Trusts are private and need not become a public record after a person’s death.

For more information about trusts, read Richard Keyt’s Article Understanding the Significance of Trusts.

By |2016-12-13T20:33:28-08:00June 15th, 2012|

Former County Attorney Andrew Thomas Wants To Change Judicial Selection Process

Estate of Denial:  “Former Maricopa County Attorney Andrew Thomas, who can no longer practice law, announced his support Thursday for a ballot measure to change Arizona’s judicial selection process.

Thomas, disbarred in April, said his backing of Proposition 115 is just the beginning of his fight to reform government.

At a news conference on the state Senate lawn, Thomas announced the formation of a campaign committee, Citizens for Clean Courts, to support the proposed constitutional amendment. Among other things, the measure would give the governor a larger role in selecting state and county judges.

Joining him were family members of elderly Arizonans whose estates have been depleted by probate and fiduciary fees under Maricopa County Probate Court.

Scottsdale resident Patti Gomes said court-appointed lawyers and fiduciaries drained her 90-year-old mother’s $1.4 million estate. Gomes and others said their families have been victimized by judges, attorneys and administrators in the probate system.

Thomas said he’s not a victim, though he has repeatedly claimed the Arizona judiciary conspired to end his career.

“That is because we got too close to the truth and the judiciary took us out,” Thomas said of himself and two former prosecutors.”

By |2012-06-11T08:52:25-07:00June 11th, 2012|

Probate Abuse Highlighted By Famous Cases

Examiner.com:  “That’s a headline to grab attention in Austin, Nashville, L.A. and for entertainers across the country – as it should. Growing use of probate instruments like wills, trusts, guardianships and powers of attorney is putting at risk both individual liberties and property rights. An ongoing legal battle involving the “Godfather of Soul” James Brown’s estate helps illustrate this point as also does the case of Nashville rocker Danny Tate who in past years fought a questionable conservatorship (guardianship) and now is targeted in what appears a series of retaliatory actions for speaking out against the perpetrators of his alleged probate abuse and the “justice” system that allows it to continue. The general public may read or hear of such actions while continuing to enjoy an “it can’t happen to me” mindset, but such confidence is misplaced as a reality emerges in which people at all levels of wealth – be it worth $50,000 to $100,000, $1 million or far more – are targeted for Involuntary Redistribution of Assets (IRA) actions. Wealth is relative and in today’s world – there’s always someone happy to take yours.”

By |2012-05-21T15:19:43-07:00May 21st, 2012|

AZ Bar Suspends Attorney Critical of Probate Court

Estate of Denial:  “The lawyer who spoke out in a series of ABC15 Investigations on Arizona’s probate system has been officially suspended.

Grant Goodman took on attorneys and guardians in Maricopa County. He filed lawsuits on behalf of vulnerable adults who claim the probate system was taking advantage of them.

Goodman appeared in several ABC15 investigations that uncovered abusive practices by the Sun Valley Group, a Valley guardianship company.”

By |2012-05-15T15:41:15-07:00May 15th, 2012|

AZ Appeals Court Rules Widow Got A Fair Trial Despite ‘Unacceptable’ Conduct During Probate

Estate of Denial: “After a year and a half of waiting, the Arizona Court of Appeals has at long last taken up the request to do right by a 90-year-old lady who was “protected” right into the poorhouse.

The court ruled that a probate court commissioner and the attorney whose law firms wound up with much of the elderly widow’s money engaged in conduct that was “highly inappropriate” and “unacceptable.”

It called the court-sanctioned siphoning of her life savings “inexcusable.”

Then the appellate judges put their stamp of approval on the entire shameful episode, saying there’s no evidence that Marie Long was unfairly treated. They advised Marie and her sisters to, in essence, to move on.”

By |2016-12-13T20:33:30-08:00May 9th, 2012|

Update: Amy Winehouse Did NOT Have A Will

Probate Lawyer Blog:  “Shortly after Amy Winehouse passed away from accidental alcohol poisoning at the age of 27 last July, reports surfaced that she not only had a will, but she had the foresight to update her will after her divorce from ex-husband, Blake Fielder-Civil. These early reports have recently been proven wrong.

Probate records were recently filed showing that Winehouse died intestate, meaning without a valid will. The estate value is listed as £4,257,580 (worth about $6.7 million U.S.) in total assets, but taxes and other debts reduce the value to £2,944,554, or $4.66 million, U.S. Many believed her estate would be worth much more, perhaps as high as $15 to $20 million.

But, let’s not jump to conclusions so quickly. The assets passing through probate court are those left in her individual name when she died. So anything held jointly with someone else, or that had a beneficiary designation (like a life insurance policy), would pass outside of probate, directly to the other person. Also, if Winehouse had a trust — which is unlikely, considering she didn’t have a will — anything held in the trust would also avoid probate. None of these types of assets would be included in her estate value as listed in the probate documents.”

By |2016-12-13T20:33:31-08:00April 4th, 2012|

Arizona Probate Case Records Will Not Be Available Online

Estate of Denial:  A newly imposed rule restricting electronic access to Maricopa County Probate Court records means that cases cannot be reviewed without physically going to the clerk of court’s office.

The rule has raised concerns among many of those involved in probate court who say it prevents them from gaining access to their own cases or cases involving relatives. It also has some probate judges and lawyers calling on the state’s highest court to lift the rule, which they described as inconvenient and problematic.

“Apparently these case records were previously provided online in violation of the rule,” Presiding Maricopa County Probate Court Judge Rosa Mroz wrote in a December e-mail. “At this time, however, there is nothing we can do.”

The rule, which prohibits the general public from accessing court records from so-called remote locations, including home and laptop computers, was established in 2009 and has been unenforced for almost two years.

The decision to limit electronic access was based in large part on concerns over identity theft, according to those who served on the Supreme Court advisory committee, which recomended the restriction in 2009.

 Officials at the Arizona Supreme Court, which oversees operations of all state courts, said they didn’t become aware that Maricopa County was making judicial orders and minute entries in probate cases available online until last month, when they ordered a halt to the practice.

The restriction also applies to court orders in mental health cases.

The decision to limit access comes after a 2010-2011 investigation by The Arizona Republic that found Maricopa County Probate Court for years allowed the assets of some vulnerable adults to become cash machines for attorneys and fiduciaries. Judges charged with overseeing these cases rarely stepped in to limit or reduce fees, even when incapacitated adults ended up on state assistance programs.

Stories and columns resulted in court reforms and new state legislation last year designed to make probate court more accessible and establish greater oversight among judges, lawyers and private fiduciaries, who are appointed by the court to oversee the healthcare and finances of individuals incapable of caring for themselves.

Continue reading here.

By |2016-12-13T20:33:37-08:00January 5th, 2012|

Probate Nightmare: South Carolina AG Rewrites James Brown’s Estate Plan

Estate of Denial:  The South Carolina Supreme Court heard arguments Tuesday in the attempt by former James Brown trustees Robert Buchanan of Aiken and Adele Pope of Newberry to set aside a 2008 deal between former S.C. Attorney General Henry McMaster and some of Brown’s disinherited claimed heirs to transfer about $50 million from Brown’s “I Feel Good” Trust.

McMaster’s deal rewrote Brown’s estate plan, giving McMaster control of Brown’s assets through a trustee selected by the attorney general and can be removed at will. The agreement also gave away more than 50 percent of Brown’s assets to disinherited relatives and claimed relatives.

Buchanan and Pope argue the court’s decision may determine the future of private philanthropy in South Carolina.

Brown’s estate plan dedicated his entire $100 million dollar music empire to education. After providing education trusts for seven grandchildren, Brown put the rest in the James Brown “I Feel Good” private foundation to be used solely for scholarships to needy children.

In the Aug. 10, 2008, agreement, McMaster rewrote Brown’s estate plan to give 25 percent of the music empire to Brown’s companion and another 25 percent to five of Brown’s more than one dozen claimed children.  McMaster’s rewrite was subsequently amended to leave the “I Feel Good” foundation with only about 47 percent of Brown’s music empire.

By |2011-11-08T08:39:31-08:00November 8th, 2011|

Can You Protect Yourself From Probate Abuses?

Estate of Denial®: At Estate of Denial®, the question of “what can people do to protect themselves, their assets and their heirs?” is often asked. Five years of studying probate culture and estate disputes yields “not a whole lot” as the most honest answer. And this status will not change despite personal liberty and property rights being increasingly challenged unless the public educates itself on inheritance rights and other probate-related threats to help take a stand against the organized, systemic looting of property and freedoms occurring in courthouses, legal offices and associated venues across this country.

“Proper estate planning” is hardly the foolproof safeguard from abusive probate actions touted in legal industry product sales pitches, but it is necessary. It should be done, however, with the knowledge that wills, trusts, guardianships and even powers of attorney are not failsafe mechanisms for protecting assets and in fact, today’s legal environment is a breeding ground allowing use of these instruments in ways absolutely contrary to their intended purposes.

By |2016-12-13T20:33:39-08:00October 4th, 2011|

Maricopa County Probate Court Better Than Most Others

National Center for State Courts: As considerable national attention continues to be focused on the neglect and exploitation of incapacitated people — many of them seniors — by court-appointed guardians, the Superior Court of Arizona in Maricopa County is more effective in protecting and preventing the mistreatment of protected individuals and their property than most other probate courts in the country, according to a report by the National Center for State Courts (NCSC). The report was released this month following a yearlong assessment of the court’s Probate and Mental Health Department.

“After conducting an in-depth study of the adult guardianship and conservatorship cases handled by the Probate and Mental Health Department and consulting with a number of other national experts, the NCSC team concluded that the manner in which caseflow management techniques, case monitoring, and court support staff are used in Maricopa County is more sophisticated and effective than most other probate courts in the nation,” said David C. Steelman, principal court management consultant with the National Center.

By |2017-10-07T11:14:45-07:00October 4th, 2011|

Probate Explained

Toledo Free Press: As an estate planning attorney, I (Mark) often deal with helping the clients of The Retirement Guys plan how to best pass their assets on to their loved ones when they pass away. This is a very serious matter if you think about it. Folks have worked hard all their lives to provide the best lives they can to their family members. They have sweated, sacrificed and gone without to make a better life. Think back on how you sacrificed.

The first thing everyone should consider is creating a will. This document decides where all your stuff goes when you die. How does it do this? By a process called probate. Many have heard the expression, “avoid probate,” or “probate is bad.” Is it really? Let’s take a moment to examine this and see if we can better understand this evil thing called probate. What is probate? My definition of probate is that it is a court-supervised process to get assets that are titled in your name to where you want them to go.

By |2016-12-13T20:33:40-08:00September 23rd, 2011|

Country Music Takes On Probate Abuse

Estate of Denial:  On their Hell on Heels debut album, a new group called the Pistol Annies (Miranda Lambert, Ashley Monroe and Angaleena Pressley) has a song entitled Family Feud.

Heads up legal industry! Country music has a long legacy of capturing American life stories. When mainstream music picks up grave robbing and estate looting as one of those life stories – just a thought – but maybe the estate abuse issue has “arrived.” 

“Shining light on the dark side of estate management” was our mission upon starting Estate of Denial® five years ago. While real reform of the culture surrounding probate systems will take time, any short-term opportunity to help more people more easily identify property poaching via probate (wills, trusts, guardianships and powers of attorney) is welcomed. Family Feud delivers just that message

 

By |2016-12-13T20:33:40-08:00September 1st, 2011|

Contrived Probate Disputes Hard To Avoid

Estate of Denial:  Call us jaded, but suggestions of how to avoid “unforeseen” estate issues never seem to take into account the real ugliness at work in today’s world whereby individuals – both inside and outside the legal profession – often contrive probate disputes. All the “proper estate planning” in the world can’t stop an estate from being targeted by any combination of determined disgruntled family members, wannabe heirs and unscrupulous legal professionals.

Here at Estate of Denial®, we term such acts an Involuntary Redistribution of Assets (IRA) defined simply as the use of probate venues and/or probate instruments (wills, trusts, guardianships and powers of attorney) to divert assets from intended heirs or beneficiaries. IRA cases certainly involve a looting of assets – often of the dead, disabled, incapacitated and/or their heirs or beneficiaries, but with guardianships, it can also involve a hijacking of basic civil liberties.

And a fight within any of these scenarios often becomes an eye-opening experience that exposes the self-interested, protectionist nature of the legal industry which comprises lawyers, judges, court-related personnel and other officials (elected officials, law enforcement, etc.) or professionals utilizing our legal system to pursue goals counterproductive to the general public’s interests in their individual or collective capacities or both. Rarely does one walk away from these experiences with increased respect for the law or confidence in the “rights” alleged to protect Americans from an assortment of harms.

By |2016-12-13T20:33:40-08:00August 30th, 2011|
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