Bear Stearns, Fannie and Freddie, Merrill Lynch, Lehman Brothers. What’s next?
And what about all the trust portfolios that are headed down? Remember, the standard of care under the Prudent Investor Act is not measured by portfolio performance – it is a standard of trustee conduct measured by how the trustee monitors, responds, and follows good procedures.
Click here for Alan Greenspan’s view.
Worst economy he has ever seen.
Dan was a single guy living at home with his father and working in the
family business. When he found out he was going to inherit a fortune when
his sickly father died, he decided he needed a wife with whom to share
his fortune.
One evening at an investment club meeting he spotted the most beautiful
woman he had ever seen. Her natural beauty took his breath away. "I may
look like just an ordinary man," he said to her, "but in just a few years,
my father will die, and I’ll inherit 20 million dollars."
Impressed, the woman obtained his business card and three days later, she
became his stepmother.
Women are so much better at estate planning than men.
Blogging credit to Greg Herman-Giddens at North Carolina Estate Planning Blog.
I’ve heard it said that there is not a remedy for every wrong, but it has always troubled me that a person "done out" of an inheritance had no recourse. Unless the person could fit themselves into the very limited circumstances of a third party beneficiary, most of these "disinherited" persons had no remedy agaisnt the person who wronged them.
There is new law in Pennsylvania and this is no longer the case. In a tremendous victory for the disinherited, the PA Superior Court has affirmed the existence of a tort for tortious interference with inheritance.
"Sometimes people marry for money, and sometimes people kill for money. But when someone has done you out of an inheritance, can you sue for money? That, in a nutshell, is the question of tortious interference with expectation of inheritance." – Thus begins Diane J. Klein in her article, "A Disappointed Yankee in Connecticut (or nearby) Probate Court: Tortious Interference with Expectation of Inheritance – A Survey with Analysis of State Approaches in the First, Second, and Third Circuits" University of Pittsburgh Law Review Vol. 66:235.
She says of Pennsylvania at p.275:
"In a pair of recent Pennsylvania Superior Court cases on appeal from the Montgomery County Court of Common Pleas, Judge Zoran Popovich has held that Pennsylvania recognizes the tort, although not in its Restatement (Second) Section 774B formulation.212 Instead, apparently relying on the 1904 case of Marshall v. De Haven, [58 A. 141 (Pa. 1904)] Judge Popovich has identified a Pennsylvania specific version of the tort, available exclusively when the tortious conduct prevents the execution of a will in favor of the plaintiff. This specific version of the tort remedies the specific injury of one who lacks standing to challenge a will, or would not benefit from such a challenge because the instrument under which he or she would benefit was never executed.. . . . until Judge Popovich, apparently no other Pennsylvania jurist regarded Marshall v. De Haven (or Mangold v. Neuman, or Cole v. Wells, other cases cited by Judge Popovich) as recognizing the tort. "
The two cases are:
Cardenas v. Shober, 783 A.2d at 319-20, and
McNeil v. Jordan, 814 A.2d 234 (Pa. Super. Ct. 2002).
The elements of the tort, as set for by the court in Cardenas, are:
(1) The testator indicated an intent to change his will to provide a described benefit for plaintiff,
(2) The defendant used fraud, misrepresentation or undue influence to prevent execution of the intended will,
(3) The defendant was successful in preventing the execution of a new will; and
(4) But for the Defendant’s conduct, the testator would have changed his will.
You gotta see this:
Juan Antunez’s post on the Florida Probate & Trust Litigation Blog —
Probate lawyers arrested for representing client disinherited by Georgia’s Slayer Statute.
Antunez writes: "When it comes to staying out of trouble, spotting your risk exposures is half the battle (it’s the "unknown unknowns" that will get you). The Georgia case gives probate attorneys something else to worry about (as if we didn’t have enough already). If your fees could in any way be characterized as tainted by criminal conduct, you need to assume the worst and take appropriate precautions. As the Georgia lawyers learned, just because you’re the friendly neighborhood probate attorney (and not some high profile criminal defense attorney), doesn’t mean you can’t get put in jail for doing your job."
Here is Professor Gerry Beyer’s summary of what happened posted on Wills, Trust & Estates Prof Blog:
Under Georgia’s "Slayer’s Statute," a murderer isn’t entitled to profit from his or her victim’s estate. Since the attorney’s were paid from the victim’s estate, they, well, what did they do? They were charged with six counts of theft by taking and one count of theft by receiving. They were taken to jail after their arrest and released the next day on $100,000 bond each (according to the Atlanta-Journal Constitution).
Were they really probate lawyers? Or were they criminal defense lawyers? What’s the difference between. . . . . . .
You can shuck corn, too. And peas and beans. Bet you never thought of this:
Jerry Orbach’s son, Chris, says his stepmother, Elaine Cancilla-Orbach is a "double-dealing, lying, scheming, miserable fool." All he got from his dad’s estate was "a few CD’s, two sweaters, a pool cue and a pocketknife."
As reported by Vicki Hyman for the Star-Ledger – "He’s also angry that his stepmother permitted someone to harvest his father’s eyes, although Cancilla-Orbach says her stepson simply didn’t know Orbach okayed the donation. "Having to leave my father’s deathbed so that some guy with an ice box could shuck his eyes out while they were fresh still makes me sick and furious to this day."
Now that puts organ donation in a different light, doesn’t it?
Writing your will is not a do-it-yourself project.
Words are important. The words that are in your will are very important. That is one of the reasons you should not try to write your own will. Even preprinted forms and computer programs can lead to problems. Take the case of Mr. Tate, recently decided in Somerset County. Tate Estate (O.C.Div.Som.), 28 Fiduc. Rep. 2d 264.
Mr. Tate died leaving an estate consisting of $700 in household goods, certificates of deposit, a checking account, money market account, life insurance policy dividend and cable refund with a total value of $39,300.
Mr. Tate died leaving a will that was apparently prepared by a local notary (practicing law without a license) who used a pre-printed form and filled in the blanks. Mr. Tate’s will said: "I give, devise and bequeath all my personal property, jewelry and furniture, to my niece, Valarie Nichols." . . . "I give, devise and bequeath all the remainder of my estate, which I may own at the time of my death or to which I may thereafter become entitled, to my friend, Janet Geisel."
So what’s the problem? The question is who gets the $39,300 – Valarie Nichols or Janet Geisel? Why is this a question? Because personal property, as understood in the law, means any kind of property other than real property. Thus, bank accounts, certificates of deposit and other cash items are personal property.
The will says all personal property goes to niece Valerie Nichols – which would mean she would get all of the assets – bank accounts, certificates of deposit, etc. Janet Geisel, the other beneficiary disagreed. She said that since the decedent had no real estate she would get nothing and that what the decedent meant was tangible personal property should go to niece Valarie and everything else should go to friend Janet..
The first point I want to make is that if there has to be a lawsuit over a $39,000 estate, how much do you think is going to be left for any beneficiary?
What do you think? What did Mr. Tate intend? And how do we know? We can’t ask him.
In this case, the court applied a doctrine of construction called "ejusdem generis" to reach their holding. "Ejusdem generis" is Latin for "of the same kind." As applied to Mr. Tate’s will, this phrase means that "where general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated." In other words, since the will said "all my personal property, jewelry and furniture" the general words "personal property" should be interpreted to mean property of the same type as jewelry and furniture.
So Janet Geisel gets the $39,300. . . . minus the costs of the lawsuit.
Moral of the story: Writing wills is not for amateurs. You may think youa re being clear, covering all the possiblities, and complying with all the legal requiresmtns. And maybe youa re – but there is no way you can know for sure that what you have written willa ccomplish what you want.
Thank you to the editors of he August 2008 issue of Fiduciary Review, 60 East Penn Street, Norristown, PA 19404 (610) 275-8200. The August 2008 issue of Fiduciary Review contained a report on the Tate Estate.
Trustees of Pennsylvania trusts have until November 6th to comply with the new notice requirements of the Pennsylvania Uniform Trust Act (PA UTA). This new legislation requires notice to beneficiaries and interested parties of the existence of trusts.
Until now, there have been many "secret" trusts in Pennsylvania. In other words, many beneficiaries of a trust don’t even know that the trust exists. A trustee had no duty to tell beneficiaries about the existence of the trust they managed or to provide any information to beneficiaries about the trust, its investments or provisions.
In order to help you meet these new disclosure requirements we provide a handy reference guide to the PA UTA changes:
click here: Handy Cheat Sheet
I have a limited number of these available that have been laminated. Please e-mail me at patti@spencerlawfirm.com if you would like us to send you one.
Also, here is a copy of a recent article I wrote on this topic, published in the Intelligencer Journal.
click here: Reproducible Article
These items may be reproduced for further distribution "as is" (that means with no changes and including attribution).
The cheat sheet:
