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.

_________________________________

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.

Taxes

ABC news ABC News reports that their latest polling shows Obama with a ten-point lead over McCain on the issue of taxes.

WSJ

WSJ Republicans are losing ground in the battle over taxes, turf they have dominated since the Reagan administration.

Calculate your 2009 taxes here.

Which plan is better for you?

New study on the estate tax

URBAN INSTITUTE
Nonpartisan Economic and Social Policy Research.



Back from the Grave
Revenue and Distributional Effects of Reforming the Federal Estate Tax
Leonard E. Burman, Katherine Lim, Jeff Rohaly


The estate tax is the most progressive component of the federal tax code. In 2000 even before substantial cuts were made, it applied only to two percent of wealthy decedents. Critics call it a “death tax” and say it is too complex, unfair, and a deterrent to savings and investment. Under Economic Growth and Tax Relief Reconciliation Act of 2001, the estate tax has been phasing out will disappear entirely in 2010 before being reinstated the following year in its pre-EGTRRA form. Congress has resisted repeated attempts to repeal the estate tax.

Both 2008 presidential candidates would scale back- but not eliminate- the estate tax which, as the law now stand will generate $490 billion through 2018. Senator McCain proposes to apply the 15% capital gains tax rate to estates worth more than $5 mil and Obama wants a 45% tax on estates worth more than 3.5 million. Obama’s plan would preserve around 60% of the current-law revenue and McCain’s would reduce revenues by about 4/5ths. Read the rest here.

Social Security Benefits to rise 5.8 percent for 2009.

A news release from the agency dated Oct 16th states that benefits for more that 55 million Americans will increase 5.8 percent in 2009. It is the largest increase since 1982. The rise is based each year on the Bureau of Labor Statics' Consumer Price Index.
Other changes are based on the increase in average wages (from 102,000 to 106,800) that will be subject to the Social Security tax.


And news from Medicare -


Stay or Switch


You can switch your Medicare health or prescription drug coverage for 2009 between November 15, 2008–December 31, 2008.

This is the official government handbook with important information about changes in 2009.

● What's new

● 2009 Medicare costs

● What Medicare covers

● Health and prescription drug plans

● Your Medicare rights

● Fraud and identity theft

Technically Unjust

Rick Green of the Hartford Courant is a vocal critic of the Connecticut Probate Courts. He reported on the terrible injustice done to Daniel Gross. Several years ago, even though he was a New York resident, Daniel Gross was held against his will in a Connecticut nursing home for 10 months when he fell ill in while visiting in Connecticut. Judge Joseph Gormley determined that this was "a terrible miscarriage of justice" and allowed Daniel to return home.

Another instance here.

On July 13, 2006, Judge Gormley said about jurisdiction:

"The statute is absolutely clear that you can't appoint a conservator of someone's person unless that person is domiciled in the state of Connecticut or resides in the state of Connecticut."

"This gentleman ... has never lived in the state of Connecticut, has lived and raised his three children in New York, his only assets were in New York, his house and his bank account, his driver's license is in New York, his registration is New York, his mail goes to New York. There is to me not a scintilla of evidence supporting residency."

"You can't appoint a conservator of the person for someone who lives out of state... the man lives somewhere else."

Now just this month comes the Story of a 96-year-old Michigan woman. When a daughter from Ohio came to visit her, she became concerned for her well-being. The daughter moved her from Michigan to an assisted-living facility in Ohio. She then filed a motion to become her guardian. Ohio law does not allow for the appointment of a guardian that lives outside the state. A second daughter objected challenging Ohio's jurisdiction.

The question at the heart of the dispute is whether the mother left Michigan voluntarily and if she had the intention to reside in Ohio.

In a 4-3 decision, the objecting daughter was found to lack standing to bring the case because of a failure to file a motion to intervene in the earlier litigation. Their justification was basically that the rules for intervention allow a court to maintain control of the proceedings. Creating a guardianship can involve many people, family, friends, neighbors, etc., and it can get out of hand.

A rebuttal that was complete and at times heart-felt challenged the majority assertion, claimed it didn't even use the right case law, and failed to construe the Rules of Appellate Procedure correctly.

"This court has consistently adhered to the policy of exercising all proper means to prevent the loss of valuable rights when the validity of a notice to appeal is challenged solely on technical, procedural grounds."

The judges felt it unjust and inequitable to prevent the daughter from challenging the lower court proceedings.

An attorney, who was not the guardian ad litem, appeared at the proceedings below representing the ward and stated that his client had indicated that she would prefer to return to Michigan and have her affairs handled by her daughter Jenny.

"She is concerned that her mother was removed from her home and forced to live out the rest of her days in a strange location. Anyone with an elderly parent can imagine the pain of seeing that parent held against her will; I consider Hull to be aggrieved by the lower court decision."

One of the problems this case brings up is the incentive an Ohio resident has to move a parent to Ohio to prevent a non-Ohio sibling from being eligible to serve as guardian. “We should not wait for the General Assembly to address this problem. Our legal system should help resolve family conflict, not provide a ready avenue to exacerbate it.”

The decision also prevented a case that the objecting daughter filed in Michigan to decide the issue of the mother's residence, which really was at the heart of the dispute.

Check your Trust Plans

From the North Bay Business Journal Commentary: Even if Just 2 or 3 Years Old, Trusts Need to be Reviewed
by Joni Fritsche, CPA AEP.

If your trust agreement is more than 2 to 3 years old, I urge you to dig it out, dust it off and read it.

Things that indicate you're overdue for a check-up:
1. New Spouse
2. Is everyone getting along? Has there been changes in family relationships.
3. Is your tax planning current? Marital deduction is 2 mil now and increasing again in 2009.
4. Are your children grown up? Are they okay or even more than ok financially? Are they healthy?
5. Do you own a business? Has it grown?
6. Are your choices for Trustee still appropriate?

Like Mr. Fritsche, we encourage our clients to stay up on their estate plan. You should review your plan often and understand all the details.
If it's been a while for contact your attorney. If you're a resident of Utah and need someone to help you evaluate or change your plan, we can help at Hughes Estate Group Attorneys.

Clarity

On writing . . .

A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. ~William Strunk, Jr., The Elements of Style, 1918

Also from an article in the May edition of the ABA Journal on the new book by Antonin Scalia and Bryan A. Garner "Making Your Case, The Art of Persuading Judges"

Value clarity above all and make your points and ask for relief in a blunt, straightforward manner.

Example:

Wrong:

The undersigned counsel do hereby for and on behalf of their clients, for the reasons explained hereinbelow, respectfully request that this Honorable Court consider and hereby rule that no issues of material fact do exist in the instant controversy, and that a final judgment be entered in favor of the client of the undersigned counsel (sometimes herein referred to as “Defendant” or “Cross-Plaintiff”) and against Plaintiff.

Right:

Johnson requests entry of summary judgment.

Clarity is amply justified on the ground that it ensures you’ll be understood. If your arguments are clear it will be harder for your opponent to mischaracterize them.

Whereas this seems to make lots of sense, I heretofore and hereinafter will strive to above all else be clear.

Writing

A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. ~William Strunk, Jr., The Elements of Style, 1918.

Make your points and ask for your relief in a blunt, straightforward manner.

Wrong:

The undersigned counsel do hereby for and on behalf of their clients, for the reasons explained herein below, respectfully request that this Honorable Court consider and hereby rule that no issues of material fact do exist in the instant controversy, and that a final judgment be entered in favor of the client of the undersigned counsel (sometimes herein referred to as “Defendant” or “Cross-Plaintiff”) and against Plaintiff.

Right:

Johnson requests entry of summary judgment

From a May 2008 ABA Journal Article on Making Your Case, The art of Persuading Judges by Antonin Scalia and Bray A. Garner.

Love goes to the Dogs

Jeffrey Toobin has a greet article in the Atlantic about the late Leona Helmsley and the inter vivos trust that she executed leaving millions to her dog Trouble.

For estate planners the salient part Pet-lovers have engineered a quiet revolution in the law to allow nonhumans to inherit and spend money. It is becoming routine for dogs to receive cash and real estate in the form of trusts, and there is already at least one major foundation devoted to helping dogs. And they are already making plans for the Helmsleys' billings, according to Toobin.

The author asks "Is it right to give so much money to a dog - or to dogs generally? Are there limits? Will there be a time when a dog can sue for a new guardian, or to avoid being put to sleep?

Leona had contentious relationships with almost everybody except her husband Harry. Her life was a trail of bitterness, strained relationship, fired employees, etc.

Unhappy associates turned her into the IRS knowing that she had billed millions of dollars to her hotel chain company for what amounted to grand-scale renovation of her Greenwhich Connecticut mansion. She was convicted of multiple counts of tax evasion and served federal prison time.

After her release from prison, she became reclusive and when her husband died in 1997she got her Maltese dog. She never had a dog before an article source is quoted as saying and she trieated her like aperson, and took her everywhere. She would take that dog to bed with her every night." He even appeared in ads for her hotels.

In spite of her vast wealth Leona left small, controlling bequests to her realtives; Trouble's 12 million is the largest single bequest in the will. In her 2nd mission statement, she removed caring for indigents and children making her priority for her chartible trust #1 care of dogs, and then charities as determined by trustees.

Helmsley's instructions for care of the dog subsequently caused a lot of trouble for Trouble. First Helmsley wanted Trouble buried in the family mausoleum, but that is not possible under NY law. Then custody was to be given to her brother or grandson, but neither man wanted the dog. After the trust provisions were made public, the dog received death threats.

Later, an alternative custodian was found. He is paid 5000 a month, security for the dog costs a hundred thousand, grooming-eight thousand, food-twelve hundred, and the vet up to eight thousand.

Update h/t Wills Trusts and Estates Prof Blog

Manhattan Surrogate Judge Renee Roth reduced amount in the pet trust in April to $2 million with the $10 million balance passing to Leona's charitable foundation.

Probate News Sept 2008

http://www.telegraph.co.uk/ The London Telegraph has an article in todays paper "How to make sure your will is not contested"


Fay Copeland of the firm Wedlake Bell says it used to be that the only questions asked where about the validity of a will. The firm claims that will and trust disputes have trebled over the past few years. Now as people are leaving more wealth it is financially feasible to contest a will. Another factor in the rise in disputes is the more complex family structures created by a rising divorce rate. Beneficiaries are looking past what the will says and more about what they think they should have been entitled to.


The gist of the article is that writing a will or a trust may be insufficient to stop family arguments when you die.


Know what and how much you own.


Name your executors and make sure they understand the responsibility that they are taking on.


Talk to your heirs in person to explain the reasons for your decisions.



Leave a letter of intent, especially if you disinheriting or are leaving unequal bequests to your heirs.


Make sure your document is signed and witnessed properly and that the right people know where you keep it.


If you have children under 18 years of age, write a letter of wishes to your appointed guardians giving guidelines as to how the children should be raised.



Make sure to keep your will updated.

Zoom Zoom Zoom, Part 2. Which son is the heir?

Our Client is a young woman who inherited a sizeable estate when her first husband died tragically in a plane crash. She has since remarried. She has two minor children from her first marriage. Her current husband has a son from a previous marriage. She and her current husband are considering having another child.

The Trusts says in the Distribution Provisions the Estate will be divided as follows:

The client’s husband and two sons will each receive a 1/3 share of her estate. If her husband dies before she does or for some other reason can’t claim his share, that share will be divided equally between the two boys. If one of the boys can’t claim his share, his entire share goes to his surviving brother.

The Trust goes on to direct that two subtrusts be created, one for each of the sons. These subtrusts will each receive a 1/3 share of the estate. The Trust says that when the conditions and requirements for the Subtrusts are satisfied, the beneficiaries will receive full and outright distribution of remaining assets.

And here’s the real contradiction in this clause,

“If any beneficiary set forth in part (a) above (meaning the two boys) shall predecease the termination of his or her subtrust . . .
Such subtrust shall be terminated forthwith and the principal and accumulated income distributed to the surviving heirs of the deceased beneficiary.”

Huh?

Here we have a case where the distribution provisions say that if one son dies, his share goes to his brother. Under the subtrust division, if one son dies, his share goes to his surviving heirs. His brother could be that surviving heir and there would be no conflict, but in a few years, he may have a son of his own. So who would inherits? Our client’s surviving son or her deceased son’s son?

Even worse, what if the current husband dies. Who gets his share? Will it be split between our client’s two sons as directed in the distribution provisions or will it go the husband’s legal heirs as directed in the Termination of Subtrust provision? That provision directs it to go to his heirs, which is likely to be his son from his first marriage.

Probably not what our client had in mind.

More on Monday . . .

Yesterday, a new client came in to our office. She was unsure of the Will and Trust that she got a few months ago from LegalZoom and wanted to ask some questions and possibly make a few changes. After reviewing the documents, I went to the internet to see what kind of feedback I could find from customers of these services. I couldn’t find much, but I did stumble onto a blog posting from a notary public about how impressive the LegalZoom will and trusts are and what a nifty binder they come in. Classy!!

I know as estate planning attorneys we’re going to be looked at suspiciously when we argue the benefit of our services over what you will get with a document preparation service like LegalZoom. And I know that these sites make it clear that they are only providing basic legal documents, not legal advice.

This site disclaimer says it all.

“LegalZoom is not a law firm, and the employees of LegalZoom are not acting as your attorney. LegalZoom does not practice law and does not give legal advice. This site doesn’t create in attorney-client relationship, and by using LegalZoom, no attorney-client relationship will be created . . .

Instead you are representing yourself . . . .

Legal zoom gives you a set of basic questions to answer and then checks them for completeness, spelling and grammar, as well as consistency of names, address and the like. So basically, you are hiring them to give you form that you probably could find at the library and for spell checking it. At four or five hundred dollars, that’s hardly a bargain. The rest is do-it-yourself law. Study up!I’ll post later on some of the problems we found. If you have stories or information relevant to the discussion on these document providers (good or bad), we’d like to hear about it.