September 28, 2007

Insurance and Estate/Trust Administration

A couple of insurance notes:

1. This article discusses something that fiduciaries (executors, administrators and trustees) sometimes forget when handling real estate: you need to make sure that it's insured. That can be somewhat tricky if the real estate is unoccupied. Even if the real estate IS occupied, some insurers may not want to take on the risk. "Risk" is the key word for a fiduciary, as you cannot be in a situation where a large asset like real estate is not insured.

2. In some cases, you may be administering an estate that is entitled to proceeds from a homeowner's insurance policy. I've got one of these situations right now -- the decedent apparently died in a fire that destroyed her entire house. I'm working with the insurance company to get paid, but realize that this is a negotiation. If the decedent had a $200,000 insurance policy, you probably won't get $200,000. But in order to maximize what you WILL get, you may want to consider hiring a private insurance adjuster. This is a person or company who will work on your behalf to get a fair settlement for the estate or trust you are administering, in the same way that the insurance company's adjusters will work to minimize the payout.

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September 21, 2007

Nixon Peabody Theme Song

For some Friday fun, here is a Youtube clip playing a song commissioned by the law firm of Nixon Peabody, along with some commentary regarding the song's controversy (more commentary is here). If you're looking to find out how NOT to market your practice, this clip offers some clues.

Coming soon: The official theme song of Joel A. Schoenmeyer, Attorney at Law!

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September 21, 2007

Phelan v. Baskin -- Trust and Will Execution

The general rule in Illinois, as I learned it when I started practicing law, is that a valid estate plan requires the client to sign his or her living trust before signing a Will that references such living trust.

A typical scenario is for an individual to have a Will leaving the residue of his or her estate to the trustee of his or her living trust. If, when the individual signed his or her Will, the living trust wasn't in existence, then the gift to the living trust is said to have failed.

A new First Division Appellate Court case (Phelan v. Baskin, available online as a PDF here) casts some doubt on the above rule. The case involves the Will and living trust of a man named John Phelan. At trial in Cook County, Judge Malak found that Mr. Phelan executed his living trust after he executed his Will, meaning that the living trust wasn't "in existence" when the Will was signed. Therefore, the residuary gift in Mr. Phelan's Will (to the living trust) failed, and the residue of his estate had to pass via intestacy.

The Appellate Court reversed Judge Malak's finding, stating that the living trust WAS "in existence" when the Will was signed. The Court's ruling is based on things like the fact that the Will and living trust were part of the client's "total estate plan," and were signed "contemporaneously."

This is a ridiculous opinion, the kind that gives judges a bad name. The Appellate Court has essentially disposed of a bright line rule that everyone knew in favor of a touchy-feely test. I can understand staying with the current rule. I can also understand overthrowing the current rule, and simply saying that there's no requirement that a trust be "in existence" when it is referenced in a Will (as long as it's in existence when the testator dies, who cares?). What I can't understand is coming up with a new rule that is based on the facts and circumstances of every particular case, just because you don't like the result in THIS case. So now we're going to see a lot of time devoted to analyzing what the court's opinion actually means -- What if the Will was signed one day (or one week) before the trust? Is a trust that I want to create but haven't created "in existence"? etc. etc.

That doesn't help the public or their attorneys.

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September 5, 2007

Blogging Break

While I enjoy posting to this blog, it's not the best vehicle for writing in-depth articles about estate planning and probate-related topics. I'd like to spend a little time focusing on such articles, so posting around here is going to be light for a while. Hopefully you'll see the fruits of my labor either on my website or published in a journal.

Thanks for reading!

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