10 Arguments Against Pre-Death (Antemortem) Probate and Will Contests

There are a handful of states that allow a person to probate a will (and challengers to contest the validity of a will) before the testator (the person enacting the will) dies. In recent years, there has been a trend to expand the practice to more states. I had an interesting discussion about this issue at the recent Heckerling conference, and I wrote this blog post to discuss why I think the practice is a bad idea.

First, some background: pre-death probate (also known as antemortem probate) is only permitted in a handful of states (including Ohio, Arkansas, North Dakota, and Alaska) because the traditional rule has been that a will doesn’t “speak” (meaning, take effect) until the death of the testator. As a result, no party had legal standing to contest the will prior to the testator’s death. The trend away from the traditional rule began several decades ago and has recently picked up some steam, as new legislation has been introduced in a handful of states in the past few years to permit antemortem probate and antemortem will contests.

While the antemortem probate schemes vary by state, in general, they permit a testator to seek a ruling from the court (while he is still alive) that his will is legally valid. Because all heirs have to be named as parties to that proceeding, it has the effect of binding any potential challengers to the determination, thereby preventing them from contesting the will at the time that the testator dies.

CONTINUE READING . . .

Posted in New Laws, Preventing Disputes, Will Disputes \ Comments Off on 10 Arguments Against Pre-Death (Antemortem) Probate and Will Contests

Left At The Altar?: Who Owns The Engagement Ring When Love Goes Wrong?

ring in the box on the tableYou’ve found the right partner; you’ve found the right ring; and your fiancee accepted.  Now imagine your fiancee unexpectedly breaks off the engagement.  You are devastated.  Your friends tell you there are plenty of fish in the sea.  You’ve returned her favorite CDs and she’s returned your college sweatshirt. But who keeps the engagement ring?

The Virginia Supreme Court recently decided this very question in the case of McGrath v. Dockendorf, No. 160262, 2016 WL 7243097 (Va. 2016).  In McGrath, Ethan proposed to his fiancee Julia with an impressive two-carat, $26,000.00 engagement ring. Julia accepted and took the ring.  About a year later, Ethan broke off the engagement.  Ethan and Julia never married. Julia did not return the engagement ring.  Ethan filed a detinue action (a suit seeking the return of specific property, or in the alternative, a judgment for its value) in Fairfax County Circuit Court.

The Fairfax County Circuit Court found that the engagement ring was a conditional gift and held that Ethan was entitled to its return or a judgment for its value.  Julia appealed to the Virginia Supreme Court.

CONTINUE READING . . .

Posted in Court Opinions, Divorce, General, Gifts, Legal Terminology \ Comments Off on Left At The Altar?: Who Owns The Engagement Ring When Love Goes Wrong?

Top Four Estate Disputes from 2016

princeWith the end of 2016 upon us, now is a fitting time to look back at some of the top estate disputes from this past year. 2016 was a typical year in that, unsurprisingly, people continued to die and families continued to fight over estates.

The following are some of the major estate disputes that graced the headlines this past year. Note that this is just a sample of some of the major ones; there were several rather prominent ones this past year that I’m unable to write about, whether because I or my colleagues at LeClairRyan represented parties in them, or because we have business relationships with one of the parties or a related entity. That said, here are what I think are the four top estate conflicts from 2016:

Prince

Pop artist Prince died in April 2016 without a will. I previously wrote a blog post, which can be accessed here, discussing at length several lessons that can be learned from Prince’s situation.

CONTINUE READING . . .

Posted in Celebrity Estate Disputes, Disinheriting Family Members, Elective share, Preventing Disputes \ Comments Off on Top Four Estate Disputes from 2016

Changes To Elective Share Law in Virginia Will Lead To More Litigation

Gavel and flag - American justiceThe Virginia General Assembly overhauled Virginia’s elective share statute this past year, and one of the big results will likely be an increase in litigation.

My colleague Brett Herbert recently wrote a blog post summarizing some of the more significant changes in the elective share framework that go into effect on January 1, 2017 (that post can be accessed here). This post focuses on a specific change that adds a time requirement in which a surviving spouse asserting a claim for the elective share must file a lawsuit to determine the elective share.

Under the prior Virginia law, when a surviving spouse wanted to assert a claim for the elective share, she needed to record a written claim in the court clerk’s office within six months of the later of the admission of the decedent’s will to probate, or the qualification of an administrator of the estate.

CONTINUE READING . . .

Posted in Disinheriting Family Members, Elective share, Will Disputes \ Comments Off on Changes To Elective Share Law in Virginia Will Lead To More Litigation

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.

CONTINUE READING . . .

Posted in Disinheriting Family Members, Will Disputes \ Comments Off on A Post-Mortem, Spousal Surprise: Can My Husband Write Me Out of His Will?

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).

CONTINUE READING . . .

Posted in Preventing Disputes, Will Disputes \ Comments Off on Do It Yourself Wills: Will They Lead to More Litigation?

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.

CONTINUE READING . . .

Posted in Guardianship/Conservatorship Proceedings, Long Term Care Facilities, Power of Attorney Disputes \ Comments Off on Guardianship Petitions by Long Term Care Facilities

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.

CONTINUE READING . . .

Posted in Celebrity Estate Disputes, Disinheriting Family Members, Slayer Rule, Trust Disputes, Will Disputes \ Comments Off on Who Would Inherit Darth Vader’s Estate?

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).

CONTINUE READING . . .

Posted in Elder Abuse, Elder Law Disputes, Preventing Disputes \ Comments Off on Recognizing Signs of Elder Abuse (and Traits of Elder Abusers)

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.

CONTINUE READING . . .

Posted in Court Opinions, General, Preventing Disputes, Will Disputes \ Comments Off on Risks to Estate Planning Attorneys in Light of the Thorsen Case