December 21, 2007

Estate of Talty and Breach of Fiduciary Duty

"Fiduciary duty" is one of those concepts that's essential to probate litigation, but is somewhat hard to explain. There's no statute in Illinois that says "these things, and these things alone, constitute a breach of fiduciary duty." Instead, fiduciary duty law is cobbled together from Illinois caselaw.

The Estate of Talty case give us an example of what a court (in this case, the Third District Appellate Court) views as a breach of fiduciary duty. You can find the case here, as a PDF. The case pitted a decedent's executor (his brother and business partner) against the decedent's widow. The case revolved largely around appraisals of the business owned by the decedent and his brother, and the court found that the executor abused his discretion in obtaining lowball appraisals and hiding more accurate appraisals from the widow.

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Blog posts will be light to non-existent between now and January 7, as I work on my article and do a bit of wassailing. My sister's blog does a nice job of documenting what constitutes a Schoenmeyer Family Christmas (vodka slush, my Great Aunt Irlitta's Christmas Strawberries, etc.). Happy Holidays!

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December 20, 2007

Collaborative Divorce

Collaborative divorce entered my consciousness in a big way recently. First (SPOILER), it comes up in the film Juno. (Minor quibble: In Juno, the husband says something to the effect of "I spoke with our lawyer and she said she can represent both of us in a collaborative divorce." I wouldn't recommend that.) Then there's this AP article.

The idea of collaborative divorce is that there are better ways to end a marriage than trying to destroy each other through a nasty divorce proceeding. As the article puts it, "collaborative divorce involves the use of attorneys for each party, often joined by other expert consultants. But the lawyers, instead of sparring, pledge from the outset to work together in crafting an outcome that is fair to all."

Here is a nice Q&A about collaborative divorce in Illinois from a firm in Woodstock.

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December 17, 2007

Selling Real Estate to a Beneficiary in Probate

Here's a fairly common situation:

Jack and Judy Smith die, leaving four children: Allen, Barbara, Charles, and David. Jack and Judy owned a house at the time of their death -- the same house where they raised their children. Jack and Judy had a Will, naming Allen as executor and leaving all of their property equally to their four children. David wants to purchase the house. May he do so?

The short answer is "yes." Some comments on such a purchase:

1. The executor has to make the deal at fair market value unless the beneficiaries agree otherwise.

2. Keep in mind that David already owns 1/4 of the house. So (to simplify), if the house has a value of $400,000, he's really only has to pay $300,000.

3. In some cases, the child who wants to make the purchase is living in the house already, or various children have paid to keep up the house since Mom and Dad died. That's a bit trickier, as the executor needs to prepare an accounting to make sure everyone is paid appropriately. Also, if David was living in the house after his parents passed away, he should be assessed fair market rent.

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December 11, 2007

Whoopi Goldberg, The Wall Street Journal, and Estate Tax Lies

The Wall Street ran an editorial yesterday (praising anti-estate tax comments made by Whoopi Goldberg on "The View") that perfectly encapsulates the "battle" over the estate tax. Which is why I'll comment on that subject again, even though I run the risk of repeating myself.

As I've indicated before, I'm not a fan of the estate tax. But I'm even less of a fan of the methods used by the people who oppose the estate tax. Those people have made an industry out of lying to the American public about what the tax is, who it affects, and how it works. (The biggest but certainly not the only example: the mythical family of farmers whose livelihood is decimated by the estate tax.)

Let's begin with the name, since The Wall Street Journal talks about the "death tax." This is a made-up word, invented by people interested in manipulation. (Presumably "widows and orphans tax" was taken.) The Wall Street Journal states that "according to polls, some 70% of voters favor a full repeal." The Wall Street Journal doesn't tell us how that polling took place -- I imagine the questioning went something like this:

Do you oppose the patently unfair death tax, which takes money out of the mouths of widows, orphans, poor farmers, and even poorer small businessmen?

But the worst thing about the editorial is its mention of the fact that the estate tax represents double taxation. In a great many cases, it doesn't -- think, for instance, about retirement benefits and unrealized capital gains. Michael Kinsley addressed this issue more than 6 years ago, here. The whole article is good, but I'll let Mr. Kinsley speak for himself:

Indeed [the argument that estate taxation is double taxation] is probably the most tediously repeated sound bite of the estate-tax debate. It is also false. Not "controversial" or "disputed" or "misleading," but out-and-out false. Most of the accumulated wealth that is subject to the estate tax was never subject to the income tax.

This is so obviously, overwhelmingly true that anyone with the slightest business or financial experience surely knows it. Even George W. Bush. Well, probably even Bush. Yet he keeps on repeating the lie.

Maybe there is a solution here. Instead of the estate tax, could we all agree on a tax, to become effective upon death, of 100% of the value of a decedent's property that hasn't yet been subject to income tax? I presume that The Wall Street Journal would be more than happy to agree to such a tax since, if they are telling the truth, this new tax would generate absolutely no revenue.

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December 10, 2007

Amy Winehouse, Drugs and Alcohol, and Guardianship

Amy Winehouse is a really talented singer -- she's popular with critics and with the public. (If you haven't tried it, you may want to check out her CD "Back to Black," in which she drags the girl group sound of the 60's into the 21st century.)

Ms. Winehouse is famous for her singing and her personal style (think John Waters Baltimore with a dash of punk), but she is also becoming increasingly famous (or perhaps "infamous") for what euphemistically might be called "struggles" with alcohol and drugs. Ms. Winehouse's mother is trying to reach out to her -- see this story.

In Illinois, there's a solution more concrete than "trying to reach out to an adult child in trouble." Article XIa of the Illinois Probate Act deals with guardianships for disabled adults, and the definition of "disabled person" (in Section 11a-2) includes "a person 18 years or older who... because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering." In other words, someone can petition the court to find a person with drug or alcohol problems to be disabled, and be appointed as that person's guardian. This could allow the guardian to make decisions about the ward's finances and health care, among other things.

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December 6, 2007

Cincinnati Bengals Probate Fight Update

Last year I blogged about the fight over the estate of Cincinnati Bengals founder Austin E. "Dutch" Knowlton. Evidently the fight is over, and his kids lost. Here is the article.

This was essentially a Will contest, involving allegations of undue influence, lack of capacity, and forgery. Those cases are hard to win in the best scenarios, and Mr. Knowlton's kids didn't have the best scenario. For one thing, the kids had apparently been disinherited since 1971 (so dad lacked capacity or was unduly influenced for 30 years?). For another, the beneficiary of the estate isn't a person (who could potentially be perceived as greedy or corrupt) -- it's a charitable foundation.

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December 4, 2007

Lindenwood U. and Estate Planning Conflicts of Interest

Professor Caron blogged here about an initiative of Lindenwood University, whereby alums who agree to leave the University at least $1,000 get free estate planning. As the comment to Professor Caron's post suggests, there's a pretty big conflict of interest issue here. It's somewhat common to run across estate planning situations where a third party (usually the client's parents or children) want to pay for the work. That's usually fine, so long as everyone understands that I represent the client, not the person (or in this case, entity) who's paying for the services. In this case, the University will pay for your legal services, but requires you to make it a beneficiary.

The situation appears to suggest a nice arbitrage opportunity, depending on how the University pays for your estate plan (and whether you can get past the moral dodgyness of it):

1. Utilize the University-recommended attorney to do your estate plan, with a $1,000 gift to the University. Will the University really cover an in-depth estate plan? That can run you -- if we're talking about Wills, living trusts, and powers of attorney -- from $2,000 up to maybe $5,000.

2. Hire your own estate planner to remove the gift via a codicil or trust amendment, which should cost less than $500.

3. Voila! An estate plan at a discount (assuming that your agreement with the University doesn't contain a requirement that you report any changes to your estate plan).

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December 3, 2007

Gone With the Wind and Trusts

I'm working my way through Margaret Mitchell's Gone With the Wind right now -- it's so long, this may well be the last book I read this year. It's surprisingly good, though -- I was expecting a bit of a bodice ripper, but the writing is very solid, and quite evocative.

One thing we learn: trusts were around even in the Old South. This is from page 107 in the edition I'm reading (my mother's MacMillan second edition). It describes the strained relationship between Sarah Jane Hamilton (aka Aunt Pittypat) and her brother Henry, and the aunt and uncle of Scarlett O'Hara's deceased husband Charles, and Charles's sister, Melanie:

The insult had occurred on a day when Pitty wished to draw five hundred dollars from her estate, of which [Henry] was trustee, to invest in a nonexistent gold mine. He had refused to permit it and stated heatedly that she had no more sense than a June bug and furthermore it gave him the fidgets to be around her longer than five minutes.

We also learn the following:

Uncle Henry like Scarlett immediately because, he said, he could see that for all her silly affectations she had a few grains of sense. He was trustee, not only of Pitty's and Melanie's estates, but also of that left Scarlett by Charles. It came to Scarlett as a pleasant surprise that she was now a well-to-do young woman, for Charles had not only left her half of Aunt Pitty's house but farm lands and town property as well.

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