Beneficiaries

As we prepare to celebrate Valentine’s Day, let’s take a moment to ruminate on how judges through the ages have addressed love and affection. We’ll start with Justice Jackson of the US Supreme Court, who authored a dissenting opinion for a 1942 case involving two people who had left their homes and respective spouses and set up housekeeping as husband and wife. Jackson first lamented that the case involved three...

Trusts can pop up in the darndest places. Take wills, for example. In one case, Sam, a lawyer, drafted a will for his long-time friend and client, Nancy, that stated she was leaving all her property to him “to be distributed in accordance with the specific instructions I have provided him.” The will did not contain the specific instructions. Nancy died, leaving no husband and no children. Her will was probated and...

Lurking just beneath the surface of every will are the “secret” terms – those default provisions that the law helpfully inserts when the document is otherwise silent. They can undermine the best of estate plans.   These provisions are not highlighted anywhere. There is no caution light that flashes to notify you of the danger. This is just knowledge that most estate planners – and a very few other souls –...

A Trust is a legal chameleon. What is a Trust At its most basic, a trust is an agreement by a fiduciary (the trustee)  to hold property for the benefit of another.  A trust is not a separate legal entity. There are three players in a trust – the settlor (who establishes and sometimes funds the trust), the trustee (who administers the trust) and the beneficiary (who benefits from the trust). A trust...

Treasure or Trash, Keepsakes Are Significant  “I admire him, I frankly confess it; and when his time is come I shall buy a piece of the rope for a keepsake.” - Mark Twain. Keepsakes are important.  So why do so few of them make it to the next generation?  In the context of legacies, keepsakes are significant because they bring back our memories of the departed. Let’s face it:  memories do not transfer...

A Disaster for Many.. Transfer on death deeds, legal in Texas since 2015, have been heralded as the latest, greatest method for keeping real property out of probate.  The goal behind them is laudable: provide a simple mechanism for transferring ownership of land to a beneficiary when the owner dies, no probate required. Four years later, how’s that working for us? Not so good. Let’s start with the form:  there isn’t one. The...

Want to save yourself 3 hours of a hard-sell at a “free educational seminar” on estate planning?  Here are the short answers to the teaser questions in that unsolicited mailing you received. Will or Trust? A will is a writing that does not become binding until after you die and the document is accepted by a judge in a court probate proceeding.  The will disposes of all of the assets that...

The Trials and Tribulations of a Will Creative Writing Gone Astray If there was one document that could benefit from therapy, it would be a will. A will can be conflicted, contested, and constructed.  It can, tragically, suffer from latent or patent ambiguity, inconsistency, and mistakes.  It can even contain a negative bequest. The only good news for a Texas will is that it cannot be stricken by mortmain. Looking at the hundreds of...

Trusts and Taxes Case is Good News for the People If you have, or intend to have, any relationship with a trust in any capacity, then you need to know about the US Supreme Court’s opinion in Kaestner.  https://www.supremecourt.gov/opinions/18pdf/18-457_2034.pdf The issue is taxation.  Some background is necessary to set the stage.   Trusts and Undistributed Income Many trusts hold assets that generate income.  If any of that income remains in the trust at the...

$27 Billion and Counting Elder Fraud Hits a New High A bombshell report on elder fraud was recently released by Comparitech, a consumer research company that focuses on the United Kingdom, the United States, and Canada.  You are not going to like the conclusions. According to Comparitech’s research, senior citizens in the United States may lose nearly 25 times more to scammers than what is being reported.   That would mean more than...

In my 40 plus years of practice the same misunderstandings keep coming up concerning wills. This article is to help clear up some common issues about how and when wills work. How Wills Work and When They Go Into Effect Wills don’t go into effect until the will has been admitted to probate. No other common legal document must be approved by a court to go into effect, but wills are...

Fiduciary Duty - Best Practices If you are serving as a fiduciary, then you need to follow some basic “best practices.”  What follows are the initial steps that you should consider taking, and then overall guidelines. First, understand your role. The most common types of fiduciary roles have a writing (a trust, a will, a court order, a power of attorney) and an applicable statute.  Read them.   Second, know your beneficiaries.  These...