A Post-Mortem, Spousal Surprise: Can My Husband Write Me Out of His Will?

Young couple after quarrel sitting on sofaImagine this potentially devastating situation.  Your spouse unexpectedly dies.  You find his will and discover, shockingly, that he left everything to his adult son (or his mistress)!  Is there anything you can do?

This situation commonly arises when a husband and wife are separated but not yet divorced.

Under Virginia law, a spouse possesses certain rights to what is known as the elective share.  Think of the elective share as a floor for a spouse’s inheritance.  It can be invoked even if the deceased spouse writes the surviving spouse out of his or her will.

Under current law, a surviving spouse can be entitled to a certain portion of what is known as the deceased spouse’s “augmented estate.”  The components of the augmented estate include things such as the decedent’s probate assets (less certain expenses and enforceable debts), non-probate transfers to others (such as payable on death type accounts), and non-probate transfers to the surviving spouse (such as co-owned accounts or certain real estate).  The exact components of the augmented estate are quite complicated, and a full discussion of those is well beyond the scope of this post.

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Do It Yourself Wills: Will They Lead to More Litigation?

Last WillHere’s my prediction: do it yourself wills, also referred to as “homemade wills” or “online wills” or “internet wills” (I’ll refer to them in this blog post as “DIY Wills”) will result in a significant (though not massive) increase in estate litigation, but society won’t see that spike for another decade or two.

What are DIY Wills? The term encompasses wills that can be created by filling in blanks on a preexisting template, usually found online. A variety of companies offer such a service for a price that is somewhat significantly reduced compared to what an estate planning attorney would typically charge. The customer pays the price, receives access to the template, fills in the information (such as naming the executor, beneficiaries, etc.), and may receive some guidance as to how to properly execute the DIY Will. Online services for DIY Wills have proliferated in recent years, and the trend will likely continue into the future.

There is a large debate about the wisdom of creating a DIY Will. The purpose of this blog post is not to enter that debate, but rather to discuss how the proliferation of DIY Wills will impact estate disputes (and you can probably determine my view after having read what I believe will be the consequences of their proliferation).

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Guardianship Petitions by Long Term Care Facilities

Power of attorneyThis blog post explains how long term care facilities (LTCFs) can consider utilizing guardianship and conservatorship petitions for problematic situations where a resident has named an agent under a power of attorney (POA), and the agent fails to pay the resident’s bills, thus jeopardizing the resident’s wellbeing.

Independent living facilities, assisted living facilities, and nursing homes traditionally take steps to ensure that residents have enacted financial POAs, as well as healthcare POAs, upon admittance. What happens when an agent named under a POA fails to make payments for the resident’s stay at the LTCF? The LTCF can sue the resident, a personal guarantor, and/or the agent under the POA, to collect the delinquent sums. Or, it could be more proactive by filing a petition with the court to either revoke the POA or the authority of the agent under the POA, and to appoint a guardian and/or conservator to make decisions about the resident’s finances, place of residence, etc.

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Who Would Inherit Darth Vader’s Estate?

darth-vader-2Who would be the beneficiary of the estate of Darth Vader? The answer is more than just an exercise in Star Wars fiction; in fact, the answer can teach us important lessons about estate disputes in our real world. In case you did not read my earlier blog post, in which I asked the same question about Han Solo’s estate, you can find that post here.

Note: for those who are not familiar with Star Wars, yet who want to follow along with the discussion below, it’s important to known that Anakin Skywalker and Darth Vader are the same person (Anakin took the name Darth Vader in Episode 3 when he fell to the dark side of the force).

Option #1: Obi-Wan Kenobi

Obi-Wan Kenobi was Anakin Skywalker’s mentor. Anakin even remarked that he was “like a father” to him. If Anakin had executed a Will early in his life, the logical beneficiary would have been Obi-Wan.

However, Obi-Wan and Anakin later had a falling out at the end of the Clone Wars whereby Obi-Wan left Anakin disarmed and disfigured at the end of their lightsaber duel on Mustafar (thereby requiring Anakin to don the mask of Darth Vader). As a result, it is exceptionally unlikely that Anakin would have left Obi-Wan as the beneficiary in his Will after that.

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Recognizing Signs of Elder Abuse (and Traits of Elder Abusers)

86b95383-d007-419d-87da-098523bf85f9My goal in this blog post is to discuss character traits of elder abusers so that you can recognize them and hopefully protect yourself, your family, and your friends. I’ve handled over 100 estate disputes, and in a sizeable number of those cases, elder abusers committed an array of unethical actions including isolating, threatening, and pressuring elderly people to change their estate plans.

I previously wrote a lengthy blog post that discussed the signs of undue influence of elders. That blog post can be found by clicking here. By contrast, this blog post focuses on the character traits of elder abusers.

A Public Record of Prior Bad Actions

There’s a reason for the saying “the best predictor of future behavior is past behavior.” That’s because the saying has proven true over and over again. In many of the estate disputes that I’ve litigated that involve elder abusers, there is a paper trail of prior bad acts by the elder abusers. Often, this paper trail is easily available on the internet. I’ve handled cases involving disgraced medical professionals and lawyers who were disciplined or who lost licenses (facts that were available on the internet), involving convicted felons (often there were articles about the convictions on the internet), and involving businessmen caught up in shady schemes (often there were articles about those schemes on the internet).

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Risks to Estate Planning Attorneys in Light of the Thorsen Case

There are several things that all estate planning attorneys (and those who advise them) need to be aware of in light of the Virginia Supreme Court’s recent ruling in Thorsen v. Richmond Society For The Prevention Of Cruelty to Animals, No. 150528, 2016 WL 3131004 (Va. 2016). My colleague Brett Herbert provided a helpful summary of the Court’s ruling in Thorsen in a prior blog post, which can be accessed here. This post shares some tips on how estate planning attorneys can attempt to minimize their legal exposure in light of the Thorsen ruling.

Estate planning attorneys would be wise to insert into their engagement letters a provision that explicitly states that they are only forming an attorney-client relationship with the person who is signing the engagement letter. Additionally, the engagement letter should clearly state that there are no intended third party beneficiaries of the relationship between the estate planning attorney and the client. This practice will help ensure that any future attorney-client relationships formed with clients will be more likely to fall outside of the reach of Thorsen’s holding, which permits claims by intended third party beneficiaries.

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Unfulfilled Expectations: May an Intended (and Disappointed) Beneficiary Sue a Will’s Drafter?

Imagine the following scenario.  Your elderly mother, your only surviving parent, wants to have a discussion with you about her estate plan.  She shows you her will and explains her intentions.  You look at the will and it seems to make sense.  She tells you she is leaving her estate to you upon her death.  She even provides you with a copy of her will and tells you where the original is.  You feel peace of mind knowing that your mother’s estate is (or should) be in order.

A short time later, your mother dies.  You have no idea what to do next so you take your mother’s will to a local attorney.  The attorney looks it over and informs you, with great regret, that her will leaves you nothing, or substantially less than your mother had told you it would.  Your mother’s estate is instead going to some person you do not even know.  You know this is not what your mother wanted.  Is there anything you can do?

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Virginia Supreme Court Issues New Ruling Regarding Guardianship Orders

A recent Virginia Supreme Court case highlights the importance of using precise language in an order appointing a guardian, as well as ensuring that when a guardian files suit on behalf of
a ward, the guardian sues in the correct capacity.

The Virginia Supreme Court recently handed down its ruling in Lopez-Rosario v. Habib, 785 S.E.2d 214 (2016), which dealt with an appeal from the Fairfax County Circuit Court. The Court confronted the issue of whether the trial court properly dismissed a medical malpractice claim on the ground that the plaintiff filed suit in her own name, despite the fact that she had co-guardians. The plaintiff was an adult with several physical and cognitive disabilities, whose parents obtained co-guardianship over her. Later, the plaintiff filed a medical malpractice lawsuit in her own name. The defendant in that lawsuit moved to dismiss the claim by filing a plea in bar, asserting that the plaintiff lacked legal standing to file suit because she was subject to a guardianship (and that instead, the proper party to the action would have been the parents as co-guardians of the ward). The circuit court granted the motion to dismiss, and the ward appealed, alleging that her parents’ authority (under the order appointing them as co-guardians) did not extend to filing legal actions on her behalf.

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Misconduct Remedies Against an Agent Under a Power of Attorney

Power of Attorney MisconductIn a prior blog post, I discussed the duties of an agent under a power of attorney. In this blog post, I discuss the remedies that people have against an agent under a power of attorney when the agent commits misconduct.

The first issue is who has standing to pursue legal action against an agent under a power of attorney? Virginia has adopted a modified version of the Uniform Power of Attorney Act that spells out the categories of people who can seek judicial relief against an agent. Under Virginia Code Section 64.2-1614, the following are some of the parties who have a right to file suit against an agent under a power of attorney:

  • the principal (the person granting authority under the power of attorney);
  • a guardian, conservator, personal representative of the estate of a decreased principal, or other fiduciary acting for the principal;
  • a person authorized to make health care decisions for the principal;
  • the principal’s spouse, parent, descendant, and adult brother, sister, niece or nephew;
  • a person named as a beneficiary to receive any property on the principal’s death (including as a beneficiary of a trust created by or for the principal);
  • and the principal’s caregiver or another person that demonstrates sufficient interest in the principal’s welfare.

This is an expansive list of parties. Notably, the array of family members is quite broad, which helps ensure that even if some family members may be sympathetic to (or indifferent to) an unethical agent, there will hopefully be at least one other family member who is sufficiently concerned to seek judicial recourse.

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3 Strange Things About Prince’s Estate

prince estateThere are several unusual factors at play in the drama that is unfolding surrounding Prince’s estate. This blog post discusses them and offers some tips so that you can hopefully avoid a similar situation.

First, the most unusual factor is that no will or trust has been found. What’s so unusual about this, you ask? Don’t numerous celebrities pass away without an estate plan in place? Sure, some do. But what makes this so unusual is that Prince is not some unsophisticated doofus; rather, Prince is quite familiar with legal disputes and has apparently had extensive dealings with attorneys over the years, especially with respect to copyright infringement actions (this CNET article remarks that Prince “has a long history of suing alleged copyright infringers.”). Therefore, the puzzling question is why did Prince not have an estate plan in place given his apparent sophistication with legal matters?

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