The Basic Stages of Life

There are three basic stages of life when contemplating estate planning.

1. Individual is alive and mentally competent



2. Individual is alive and mentally incapacitated



3. Individual has died

Each of these stages is handled differently.

Individual is alive and mentally competent
When an individual is alive and mentally competent, estate planning documents can be in place, but most likely the documents are sleeping (or not being used) during this stage of life.

Individual is alive and mentally incapacitated
When an individual is alive but mentally incapacitated, there are certain estate documents that if prepared ahead of time allow family members to step in and begin acting on behalf of the incapacitated individual. The kind of documents that might be prepared for this stage of life are:

• health care power of attorney



• medical directive (pull-the-plug)



• health care directive



• financial power of attorney



• do not resuscitate (In Utah, an individual can only obtain a DNR by contacting a physician and filling out the DNR with the physician.)

If these documents are not in place before an individual becomes incapacitated, family members will go to court to obtain conservatorship or guardianship appointment in order to act for an incapacitated person.

Individual has died
When an individual has died, any powers of attorney used during incapacity becomes void and family members must turn to any will or trust that has been established to deal with this stage. If an individual has prepared a trust and/or will, family members can begin the process of accessing assets, paying bills, and distributing assets to the beneficiaries of the deceased person. If the person dies without estate documents in place, most likely the family members will need to go through probate to obtain authority to access and distribute any property of the deceased person.

In contemplating estate planning, it is important to be aware of the three stages of life and prepare for each stage.

Do You Know How Your Home is Titled? For Sure?

I ran across an article discussing the importance of knowing how your home is owned, specifically if the home is owned by more than one owner. The article focuses on the importance of knowing whether or not the property is owned as joint tenants or as tenants in common. The way the property is owned (joint tenants or tenants in common) makes a difference in how the property is owned upon the death of one of the property's owners. You can read the full article here.

In Utah, real property is owned as joint tenants if (1) a married couple expressly indicates on the deed of ownership that they are husband and wife or (2) the words "joint tenancy interest with rights of survivorship" or similar verbiage are expressly included on the deed of ownership. If the deed does not have the above language, the owners are considered tenants in common.

In 2011, the Utah State Legislature amended the joint tenancy statute in Utah. The new statute makes it clear that entities of any kind, including corporations and trusts, cannot own property in joint tenancy. Only individual natural persons can own property in joint tenancy if expressly indicated on the deed of ownership.

You can read the full Utah joint tenancy statute here.

Check us out here regarding asset ownership issues.

Lost Inheritances

The Sacramento Bee reports that California's unclaimed property program is sitting on billions in forgotten money owed to thousands of businesses and individuals. It's from dozens of sources: overlooked bank accounts; stocks, bonds and dividends; uncashed paychecks; abandoned safe deposit boxes; misplaced insurance policies; utility bill refunds; or even that security deposit from your first college apartment.

In the last five fiscal years, California's unclaimed property office has returned $1.37 billion from more than 1.4 million accounts held by individuals and businesses, according to state controller's spokesman Jacob Roper.

How could so many lose track of so much?

"A lot of larger assets we're holding are inheritances that people don't know about," said Ruth Holton-Hodson, who oversees the state's unclaimed property program. "Older generations were very private about their incomes and often didn't share that with their children. They search our site and find, 'Oh, my goodness, Grandma had a bank account or Aunt Sally had 15 shares of GM.' "

In California you look at www.claimit.ca.gov or call 800-922-4647. In other states and Canada the National Association of Unclaimed Property Administrators has a site at missingmoney.com.

At Hughes Estate Group, we see unclaimed property issues as a sign of extraordinarily poor or nonexistent estate planning. Even for those with plans in place, the lesson here is simple: COMMUNICATE. You must communicate with your beneficiaries and fiduciaries where a complete list of all your assets and your will and trust can be found when you are gone.

Beat it, Just Beat it

According to legal documents filed by Katherine Jackson's attorneys, Michael Jackson's trust included a "no-contest clause." If a beneficiary attempts to challenge the terms of the trust terms in court, the challenger can be disinherited.

Apparently Katherine Jackson has not completely given up on administering Jackson's estate, so she is stepping lightly and asking the court to determine if an objection to the appointment of trust-stipulated trustees John McClain and John Branca would constitute a violation of the no-contest clause. A hearing is scheduled to take place Aug. 3.

In Utah, a no-contest clause is a sure sign of a boilerplate document. Here, no-contest clauses are simply unenforceable if probable cause exists for instituting a contest. (Utah Code sections 75-2-515, 75-3-905, and 75-7-112.) It is often quite easy for a beneficiary to establish some probable cause for contesting a will or trust. That is not to say that the contest will succeed; such contests in fact often fail. But it is difficult to disinherit a beneficiary for bringing the contest. If a person has a concern about preventing contests, we at Hughes Estate Group have foolproof measures to prevent such contests. Cheap "no-contest" clauses are not the solution.

Financial Abuse by Caretakers

The New York Times reports that estate battles are breaking out all over, on estates large and small, and oh boy are they nasty.

One story tells of a 99 year-old man who married his caretaker. Even though she wasn't in his will, his 48-year-old wife is suing for her statutorily defined share of his estate. His sons say he suffered from severe dementia.

Another caretaker is being accused of tricking a woman she took care of for eight years. Three years after the woman was diagnosed with dementia the caretaker drained the bank accounts and transferred the home into her name.

A good probate and estate planning attorney can ensure these types of situations do not occur. The way to do so is with comprehensive powers of attorney, thorough caregiver agreements, very tight amendment and revocation procedures in documents, complete funding of trusts, and clear and appropriate communication with beneficiaries and fiduciaries while you are competent. For Utahns, contact Hughes Estate Group, Attorneys, (800-422-0627) if anything mentioned in this article strikes close to home.

The Connecticut state attorney general stepped into a probate proceeding to challenge the sales agreement stemming from 2005 that challenged the legitimacy of a sales agreement in which an elderly Greenwich woman agreed to sell her home to two men for less than half of what it was worth at the time.

Attorney General Richard Blumenthal intervened after Mona Lee Johnson, of Greenwich, agreed to sell her home, estimated to be worth $1.2 million, for $500,000, a month before she passed away.

The Attorney General's Office alleged that her neighbor, Mark Lovallo, had urged Johnson to sign off on the sales option while she was sick in the hospital. The deal also included her longtime accountant, David Alfano.

Blumenthal said that Johnson never intended to approve the deal, which would have significantly lowered the amount of money that would have been donated to eight of her favorite charities. Johnson's will divided nearly all of her $1.5 million estate to charities including the Greenwich Library and Perrot Memorial Library in Old Greenwich.

"I fought successfully to stop this suspect agreement denying hundreds of thousands of dollars to charities intended to benefit from the home's sale," said Blumenthal. "In charity law, the donor's wishes are paramount. This donor never wished to sell her home at a bargain-basement price, significantly slashing the proceeds to charities named in her will."

Blumenthal said the "suspect" agreement caught his attention because his office is in charge of enforcing charity laws and often reviews probate cases involving charitable donations.

"We were the only ones to challenge this agreement. It came to our attention through filings in the probate court," said Blumenthal.

If the sales agreement had gone through and Johnson's home was sold for $500,000, Blumenthal said the estate's total value would have been about $300,000 less.

"Ill and infirm, this woman supposedly signed papers while hospitalized and in the last month of her life, raising grave doubt the agreement reflected her true wishes," said Blumenthal.

Probate Judge Daniel Caruso voided the agreement earlier this month. The house will now be offered to Lovallo and Alfano for one month at the original fair market price at $1.2 million. Blumenthal said if they fail to act on the deal, the executor of the estate will put it on the market to be sold for at least $800,000 or more.

Johnson's estate also includes $700,000 in stocks and cash.

After expenses, all but $100,000 of the estate will be divided among eight charities including, Weimaraner Foundation, AKC Canine Health Foundation, Perrot Memorial Library, Greenwich Library, Cornell University Veterinarian School, University of Pennsylvania Veterinarian School, Tufts Veterinarian School and the Embroiders Guild.

Calls to Lovallo and Alfano Friday were not immediately returned.

See article here.
For information regarding estate planning look at our website here.

Incomplete Pass--McNair and Estate Planning

Professional quarterback Steve Mcnair cheated on his wife and was killed by his girl friend. He had sons from prior liaisons with different women. He earned more than $75 million during his 13-year NFL career with the Titans and Ravens, and--you guessed it--he never completed any estate planning.

It appears that settling Steve McNair's affairs is going to be messy.

The Tennessean reports that the family of at least one of the two sons born before McNair's marriage will file a claim for a share of the slain quarterback's estate.

McNair didn't leave a will and his widow Mechelle has filed court papers saying she and sons Tyler, 11, and Trenton, 6, are the heirs. Mechelle's probate petition states that she cannot confirm whether two other boys are Mr. McNair's children.

One of those boys, McNair's oldest (alleged) son, Steven L. McNair Jr., is a senior and star wide receiver at Oak Grove High in Hattiesburg, Miss.

His second (alleged) son, Steven O'Brian Koran McNair, 15, lives in Mount Olive, Miss. The younger Steven's grandmother told the Tennessean that the boy received $500 a month for child support.

So many problems that could have been handled so easily with good estate planning.

Come Here Sweetie Little Hubby-Pig!

Nina Wang, a.k.a. Little Sweetie, is in the news again. The fight for her inheritance goes on. The fight is centered around the existence of two wills, one in 2002 which gives Wang's $4 billion dollar estate to a foundation linked to the family's privately-held company and one dated to 2006, which was drafted while Wang was suffering from cancer. This later will gives her estate to her feng shui master, Tony Chan, a married man 23 years younger than herself. Mr. Chan has been arguing his case based on claims he had a marital type relationship with Wang, even though he is married and has three children (one is named Wealthee Chan).

Mr. Chan's case rests largely on his relationship with Mrs. Wang, reports the New York Times. He claims Wang had pet names for him and called him (translated from Cantonese) “Hubby,” “Hubbykins” and the rather unfortunate sounding “Hubby-pig.” This epic romance started out with a head rub that cost the wealthy land tycoon $6500.

Murderers and Abusers Need Not Apply

New Jersey just passed a new slayer statute law that prevents "anyone convicted of a crime that resulted in death or serious bodily injury to a family member of a divorcing party, and crime was committed after the marriage or civil union. In addition a person convicted of an attempt or conspiracy to commit murder will not receive alimony from the person who was intended victim or be awarded equitable distribution.

It also addresses parents who endanger or abuse their children.

Under the law, a parent loses all rights to intestate succession and to administer the estate if:

· They refused to acknowledge or abandoned the child by willfully forsaking or failing to care for it in such a way that it exposed the child to physical or moral risk.

· They were convicted of committing sexual assault, criminal sexual contact, endangering welfare of children, attempt or conspiracy to murder the child or committed abuse or neglect that contributed to the child’s death.

Rick Green - Connecticut's Caped Cusader

CT Confidential

Margot Claus, owes the court who wrongfully imprisoned her almost $1,000 according to Rick Green at the Hartfort Courant. The woman who was not a resident of Connecticut got tied up in the state probate system and had to be rescued German relatives.

Women's Cases Cry Out For Probate Reform from Rick Green at The Hartford Courant


There have been allegations of incompetence, corruption, and bribery that Green reports allows all kinds of people to make money off an old or ill person's estate. His probate blog posts are here.

Connecticut has a 300 year-old probate bureaucracy that runs 117 different courthouses and 117 judges. It does not allow jury trials and judges do not have to have training in the law. Courant columnist Rick Green has followed closely the stories of people caught up in the system and unfairly stripped of their rights. This reporting has finally paid off this year as Connecticut's Governor has introduced probate reform that will require probate judges to be members of the bar and consolidate the 117 courts into 36 courts corresponding to the boundaries of state senatorial districts.

Don't Call, Everything is OK

A disturbing story out of Denver.

A Denver man belonged to an Elk's Club that supported a mental health facility for developmentally disabled children and adults. He walked into the facility last July and left an envelope. On the outside it read, "Wait until you hear from the coroner. Please don't call, everything is OK." Twelve days later Beech took his own life.

Inside the envelope was a check for $100,000 made out to the charity. It was cashed a few days after the man's death.

The family is now suing the facility for the money back because they say the facility could have done something to prevent the death.

Colorado law does not permit a killer to benefit from the estate of the person he murdered, but Beech's death was a suicide.

Geneology

Estate Records may Reveal Previously Unknown Family Members

by Dee Gibson-Roles Asheville Citizen-Times

Estate and probate records are some of the most valuable documents to a genealogist. These records often contain information that can be found nowhere else.

Probating an Insanity Defense

Joshua Hoge locked up in Western State Hospital in Tacoma Washington. In 1999 he stabbed his mother and brother to death with a butcher knife. He was found not guilty by reason of insanity and now he is fighting to inherit part of his mother's estate.

While some states have decided whether people found not guilty by reason of insanity can inherit the estates of their victims, Washington has not.

The case was set to be decided last month by the Washington state Court of Appeals. But the appellate court sent it back to King County Superior Court, which originally decided Hoge could not inherit money from Kissinger. The appellate court said the King County court made a mistake in its original determination and must reconsider the case. No date has been set.

The main issue in the case that has not been settled by statute is, can a person found not guilty of murder by reason of insanity be considered a slayer? Arguments were heard on February 12th and no decision has yet been issued.

Is This True?

At the Consumerist you can choose your own adventure through Mandatory Binding Arbitration. According to them, recent studies have found that arbitrators rule against consumers between 94-96% of the time.

Canadian same-sex marriage is recognized in NY probate case

"Mr. Leiby is decedent’s surviving spouse and sole distributee," so there was no need for formal notification of Ranftle’s three surviving siblings about the pendency of the proceeding, and Surrogate Glen signed the probate decree, allowing Mr. Ranftle’s last will and testament to go into effect.

Because the marriage was valid in Canada, it is recognized under New York law, held Manhattan Surrogate Court Judge Kristin Booth Glen. A lawyer for J. Craig Leiby, 65, who is the surviving spouse of Kenneth Ranftle, 54, said the probate petition was not opposed, reports the Associated Press. Both men lived and worked in New York.

Halloween Probate News

ADRIAN, Mich. -Daily Telegram. Adrian, Michigan

A 16-year-old girl admitted to poisoning her grandmother at their Addison-area home two years ago. She pleaded guilty to killing her 53-year-old grandmother by slipping her morphine pills. The woman had been the girl's guardian since the girl was 8 months old.

Though only thirteen at the time of the murder, Kristina Adkins was given life and sentenced as an adult.

Why Kristina would kill the woman who raised her since she was an infant remains unclear. She never revealed her motive.

“Things are not like they seem to be, that’s all I can say,” said Doris Dupuie, Virginia Bentley’s mother and Kristina’s great-grandmother.

Defense attorney Michael McFarland of Adrian said Kristina never gave a direct explanation for wanting to kill her grandmother.

“I think it was cumulative of her entire life experience,” McFarland said.

At the sentence hearing, McFarland told the court that Kristina had a troubled childhood that included mental health problems and drug abuse.

Lenawee County Prosecutor Jonathan Poer asked the court for an adult sentence.

“While she may be a teenager, the result of her conduct is undeniable and permanent,” Poer said. Society would not be protected if Kristina was placed in a juvenile facility, he said, adding that she told a probation officer she is not sure if she might kill again. Poer said that Kristina saw her grandmother in pain for several days from the morphine before increasing the dose to a fatal level.

Noe agreed the severity of the crime and the risk to society are too great for a sentence to a juvenile facility.

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Norwalk Connecticut Stamford Advocate

NORWALK - Although a jury found Mary Ann Langley guilty of killing her husband by throwing gasoline on him and lighting him on fire, she could still inherit his $1.2 million estate, family members and attorneys said.

This turn of events was made possible by a jury of eight women and four men who did not convict Langley of murder two weeks ago after a seven-day trial at state Superior Court in Stamford. The jury was unable to find beyond a reasonable doubt that Mary Ann Langley intended to kill her husband by throwing the gasoline on him, and instead found her guilty of intentional first-degree manslaughter in the December 2006 death of her husband, James, 55.

State statutes prohibit only murderers from inheriting from their victims, not individuals convicted of manslaughter.

The state's slayer statute says that when a defendant has been convicted of killing another person, such as in the case of Langley's manslaughter conviction, her rights to inherit shall be determined under common law.

According to Willie Langley and his probate attorney, Alan Williams, the will could be contested in Probate Court, or a wrongful death suit could be filed in Superior Court. Langley said last week that his brother's estate, which includes two homes on Woodward Avenue, a contractor's lot and other contracting equipment, is worth about $1.25 million.

"Under the statutory scheme in place in Connecticut, it is clear that Mrs. Langley can inherit," Seeger wrote in an e-mail from Chicago on Friday.

"Under the common law analysis that follows the initial determination, there is an issue of a beneficiary's motives that needs to be determined," Seeger said. "Generally, if the motive of an individual is to gain benefits by causing the death, the person can be disinherited. It is our position that no such evidence exists in this case."

Stephen Keogh, a probate attorney practicing in Norwalk for 23 years, said, "Connecticut has a black-and-white rule on murder: that someone convicted of first- or second-degree murder cannot inherit from someone they murdered. All other cases of somebody who might inherit from someone they killed are left to common law, which is a big body of law that allows the case to be resolved on a case-by-case basis."
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Seems to me that if you throw gas on a person and purposely light them on fire, you've made your're intentions pretty clear. Just sayin.