Maryland Estate Litigation

Tag: estate and trust litigation

“For reasons which are known to them” – Disinheriting a Child

by David A. (Andy) Hall

The decision to disinherit a child is generally not made lightly and neither should be the approach to planning.  Careful consideration as to why a parent wishes to exclude a child from her estate planning is necessary prior to preparing the documents.  There may be ways to arrive at alternative solutions that achieve many of the client’s goals without risk of litigation that disinheriting can bring (which I will cover in part 2 of disinheriting a child).

Some may want to disinherit because they want to create incentives for their children to develop a strong work ethic. This is the approach that Sting intends to take with his children.[1]  A number of celebrities, like Bill Gates and Warren Buffet, have similar ideas to Sting.[2]  Celebrities have also disinherited children for reasons that were (allegedly) known only to the children.[3]  Leona Helmsley famously left $12 million for the care of her dog Trouble while also disinheriting two of her grandchildren “for reasons which are known to them.”[4]

Whatever the reason or reasons for choosing to disinherit, a diligent approach to the estate planning and the documentation of the estate planning is necessary.  It is relatively easy to challenge a will.  In Maryland, a Petition to Caveat a Will (a will contest) is a notice pleading.[5]  The Petition needs to contain “an allegation that the instrument challenged is not a valid will . . . and the grounds for challenging its validity.”[6]  In simpler terms, one challenging a will (the “Caveator”) needs to say that the will is not valid and offer a laundry of reasons that it may not be valid.  The list of reasons does not need to be supported by facts.  Many practitioners describe the grounds for challenging a will as including the “kitchen sink” because due to the six-month statute of limitations it is necessary to plead every single possible cause of action or it will be barred despite further evidence that may be generated.

“For reasons which are known to them” is a common refrain in estate plans that disinherit.  This language, however, does no favors for litigation counsel who ultimately defend the will against a disgruntled heir.  The disgruntled heir inevitably has nary a clue as to what the cryptic language is referring to; indeed, they will describe their relationship with the disinheriting parent in glowing terms.

Litigation counsel will then turn to the drafting attorney’s file and look for clues as to the testator/testatrix’s intent for disinheriting a child or grandchild.  In a will contest, the drafting attorney’s file is no longer privileged upon the death of the testator.[7]  Experience has shown that drafting attorneys do not always have the best habits of taking notes when meeting with their estate planning clients.  Even when they did take copious notes, the estate planning file has a tendency to winnow down through the years where the only remaining documents are usually only the final draft or executed version of a will.  The attrition of an estate planning file can seem suspicious to an outsider, but it also makes sense from a logical perspective.  Successful attorneys have thousands of clients that they represent over the course of a career, which generates reams of paper.  As the files build up, a game of survivor begins to take place.  Documents may be destroyed in accordance with a firm’s file retention policy or those documents may be returned to the client upon the conclusion of the representation or the drafting attorney’s retirement from practice.  Absent explanation in the drafting attorney’s notes, litigation counsel is forced to rely on other contemporaneous documents and the testimony of those that knew the testator/testatrix – namely their children or grandchildren – those who stand to lose out on a portion of their inheritance.

The attorney representing the Caveator can attack the lack of evidence and cryptic words of the testator/testatrix in an attempt to extract a settlement from the estate.  Many times a settlement will make sense because of the risk involved in litigating any case and also the attorney’s fees that will be expended by the estate in defending against the caveat.  A little additional care by the planning attorney in maintaining their file or documenting the reasons for the caveat in the first place can go a long way in protecting the client’s ultimate wishes for the disposition of their assets.

We will discuss some other approaches to estate planning where the client wishes to disinherit a child in our next blog in this series.  Should you wish to discuss your estate plan with an attorney who has not only drafted, but also litigated a will or trust, then do not hesitate to call.

David A. (Andy) Hall, Esq.
King|Hall LLC
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
410-696-2045

andy@kh.legal

 

[1] http://time.com/money/2922231/sting-disinherit-will-kids-heirs-inheritance/

[2] http://time.com/money/2913542/10-other-celebs-besides-sting-whove-cut-their-kids-out-of-their-wills/

[3] https://www.theguardian.com/film/2008/may/25/biography.film

[4] https://static01.nyt.com/packages/pdf/nyregion/city_room/20070829_helmsleywill.pdf

[5] See Md. Rule 6-431.

[6] Id.

[7] See Benzinger v. Hemler, 134 Md. 581, 107 A. 355 (1919).

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What are Trusts? Main Trust Principles

by David A. (Andy) Hall

1. Trust Terms, Concepts and Definitions

A trust is, “[a]n equitable or beneficial right or title to land or other property, held for the beneficiary by another person, in whom resides the legal title or ownership, recognized and enforced by courts of chancery.”[1] It is worth noting that Maryland does not have courts of chancery and the Circuit Court where venue is appropriate would enforce a trust. More generally, a trusts is an important estate planning vehicle, but can also serve a vital role in the protection of assets prior to the Grantor’s[2] death.  They can serve as a desirable alternative to a will and allow the grantor’s family to avoid probate to a large extent and provide for greater control over the decedent’s assets after death.

Types of Trusts

Trusts are broadly split into two categories: living or testamentary.  The living trust, or inter vivos, is a trust created while the Grantor is alive.  A testamentary trust is a trust created in a Last Will and Testament.  Trusts can also be split in two other categories: revocable or irrevocable.  A revocable trust can be terminated by the Grantor during her lifetime.  An irrevocable trust cannot.  Finally, there are charitable trusts and non-charitable trusts.

Goals of Trusts

There are five key goals to trust planning.  1. Avoid Probate; 2. Protect the Grantor/Beneficiary’s Privacy; 3. Plan for Incapacity; 4. Tax Minimization; and 5. Creditor Protection.  By avoiding probate, grantors and their trustees can avoid cumbersome estate administration especially in estates with real property in other jurisdictions.  There is no immediate jurisdiction of the court for the administration of a trust.  The well drafted trust will contain a mechanism for succession should grantor/trustee become incapacitated.  Trusts, particularly those with charitable components can be an useful tool in the minimization of taxes.  Finally, trusts can help protect young or unsophisticated beneficiaries from their own poor choices and shelter assets in the event of a divorce.

Functions of Trusts

Trusts provide for flexible management.  They allow an orderly means for the transfer of authority in the event of a trustee’s resignation, incapacity, or death.  Trusts can also reduce the expenses of administration as compared to probate.  Trust planning is effective to protect the Grantor’s estate planning objectives by allowing her to shield beneficiaries’ from themselves and by exercising control for multiple generations.  Trusts can also serve as mechanism to manage litigation.  Litigation in trust cases is often more expensive and complex, which can deter a would be challenger.  And unlike a will, the filing of litigation does not strip the trustee of power to continue to act without seeking the order of the Court.  In many instances, there will be no need to file for guardianship for an incapacitated or underage beneficiary.

Definitions

  1. Beneficiary – One for whose benefit a trust is created[3]. “Beneficiary” means a person that:
    (1) Has a present or future beneficial interest in a trust, vested or contingent; or
    (2) In a capacity other than that of a trustee, holds a power of appointment over trust property.[4]
  2. Grantor – a person, including a testator, that creates or contributes property to a trust.[5]
  3. HEMS – Health, Education, Maintenance and Support – This is the most common discretionary standard.[6]
  4. Incapacity – inability of an individual to manage the individual’s property or financial affairs effectively due to:
    (1) Physical or mental disability;
    (2) Disease or illness;
    (3) Habitual drunkenness;
    (4) Drug addiction;
    (5) Imprisonment;
    (6) Compulsory hospitalization;
    (7) Confinement;
    (8) Detention by a foreign power; or
    (9) Disappearance.[7]
  5. Income Beneficiary – a person entitled to income from a trust
  6. Independent Trustee – A non-interested trustee who is granted additional powers under the Internal Revenue Code.[8]
  7. Interested Trustee –
  8. Under the Internal Revenue Code, a related or subordinate party. In simpler terms, someone working for or a first degree relative of the Grantor.[9]
  9. Power of Appointment – authority to designate the recipient or recipients of beneficial interests in property.[10]
  10. Property – anything that may be the subject of ownership, whether real or personal, legal or equitable, or an interest in the thing.[11]
  11. Qualified Retirement Benefits – amounts held in or distributed pursuant to a plan qualified under Section 401, an individual retirement arrangement under Section 408 or Section 408A, a tax-sheltered annuity under Section 403 or any other benefit subject to the distribution rules of Section 401(a)(9)
  12. Settlor – See Grantor
  13. Situs – The location of the trust for legal purposes. Maryland law provides that the situs of the trust is any county where the trustee may be sued.[12]
  14. Trustee – One who, having legal title to property, holds it in trust for the benefit of another and owes a fiduciary duty to that beneficiary.[13]
  15. Trustor – See Grantor

2.  Key Parties in a Trust and Their Roles

There are three key roles in a trust, but there are also additional roles to consider as well.  First and foremost is the Grantor.  The Grantor grants or gives property to be included in the trust.  The property is held by the Trustee for the benefit of the Beneficiary.  The Trustee is guided by the rules within the trust document and pursuant to state statute and case law regarding the management of the trust including, but not limited to, distributions to the Beneficiary.  The Trustee has a duty of loyalty to the beneficiaries.[14]  A beneficiary may be either a current income beneficiary or contingent beneficiary entitled to receive funds at some future date under certain specified conditions.

A role player not often contemplated, but which may be forced to decide on matters related to the trust, is the court.  The Court can modify the terms where appropriate or where all trustees and beneficiaries agree as long as it is not inconsistent with the grantor’s intent.  It can modify if unanticipated circumstances arise.  It can also remove a bad actor trustee.

Additional Roles to Consider

  • Trust Protector
  • Trust Company
  • Financial or Investment Advisor
  • Doctor or other mental health professional

A Trust Protector serves an oversight role of the trustee and the operation of the trust.  A trust protector can step in, and depending on their powers, remove the trustee, or amend the trust as necessary to keep it current with the intent of the grantor, or in line with changing laws.  A Trust Company can serve the same role as the trustee, but may have different members of the organization serving various roles.  A Grantor may appoint a Financial Advisor to serve as the investment manager.  Many times a trust instrument will provide that the Grantor or a Trustee can be considered incapacitated for the purposes of the Trust if two doctors certify that person lacks capacity.  In practical instances, it can be extremely difficult to get a reluctant Grantor to two different doctors.  In addition, long-time family physicians are going to be extremely hesitant to certify that her patient no longer has capacity.  Appointing a third party mental health professional, or a trusted person, to decide whether the Grantor has the capacity to continue managing assets is an option to remedy doctor shopping.

Care should be exercised before nominating any party for a particular role.  They should be consulted with prior to their inclusion in the document.  Trustees should affirmatively sign that they have accepted the position.

3. The Laws of Trust Creation and Administration

The most critical law for Maryland attorneys regarding the creation and administration of trusts is The Maryland Trust Act.[15]  It was adopted along with approximately 30 other states as a variation of the Uniform Trust Code.  It was not adopted to revise Maryland law on trusts, but to fill in gaps and codify much of the common law.  It applies, prospectively and retroactively, to all trusts created before, on or after January 1, 2015.  It is not applicable, however, to constructive or resulting trusts.

A couple of key provisions to note, it allows a trustee to terminate the trust if the fair market value is under $100,000.[16]  In addition, it codifies that the capacity to create, amend, revoke or add property to a revocable trust is the same as that to create a will, that is, the Grantor must know the nature and objects of her bounty.[17]

4.  Trust Revocability and its Implications

The ability of a trust to be revoked allows the Grantor to retain control over the trust property.  This gives the Grantor/Trustee considerable power to amend the terms of the trust, change beneficiaries, change or remove trustees, but with this power comes certain drawbacks.  The Trust property will still be considered an asset of the Grantor in most instances.  This can have important ramifications for tax or Medical Assistance planning.  In addition, a self-settled trust will likely not be afforded as much creditor or bankruptcy protection as an irrevocable trust.

5.  Trust Funding Basics

Too many attorneys draft great documents, but the plans they have drafted ultimately fail because of a lack of emphasis on funding the trust.  Clients do not understand that a trust is incomplete until it is actually funded with assets.  A trust is an empty vessel without property to fund the trust.  It is often left to the client to figure out the funding of the trust on their own with a few notable exceptions.  Many attorneys are familiar with the pour-over will and a deed titling real property in the name of the trust, but some may be less familiar with the assignment of personal property or dealing with retirement assets.  Finally, it is helpful for assets that are not titled to have the clients prepare an asset schedule to be included in the trust.

[1] Black’s Law Dictionary

[2] Also known as a Trustor or Settlor.

[3] Black’s Law Dictionary

[4] Md. ESTATES AND TRUSTS Code Ann. § 14.5-103(d)

[5] Id. § 14.5-103(v)

[6] See also Id. § 14.5-103(y): Support provision. —

(1) “Support provision” means a mandatory distribution provision in a trust that provides that the trustee shall distribute income or principal or both for the health, education, support, or maintenance of a beneficiary, or language of similar import.   (2) “Support provision” does not include a provision in a trust that provides that a trustee has discretion whether to distribute income or principal or both for the purposes under paragraph (1) of this subsection or to select from among a class of beneficiaries to receive distributions in accordance with the trust provision.

[7] Id. § 14.5-103(l)

[8] 26 U.S. Code § 674(c)

[9] Id. § 672(c)

[10] Md. ESTATES AND TRUSTS Code Ann. § 14.5-103(q)

[11] Id § 14.5-103(s)

[12] Md. Rule 6-111(a)

[13]  Black’s Law Dictionary

[14] Md. ESTATES AND TRUSTS Code Ann. § 14.5-802

[15] See generally Id.  § 14.5-101 et seq.

[16] Id. § 14.5-412

[17] Id. § 14.5-601.  It is silent as to irrevocable trusts.

 

David A. (Andy) Hall, Esq.
King|Hall LLC
410-696-2045
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
andy@kh.legal

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A Primer on Guardianships – Part One – Introduction

by David A. (Andy) Hall

Potential clients will often come into our office because their loved one is no longer able to manage their financial affairs or health care decisions due to a disabling event or disease.  One study suggests that nearly two-thirds of Americans do not have incapacity planning documents.  When the disabled person does not have the proper planning documents in place (at minimum, an advance medical directive and financial power of attorney), then their loved ones are unable to make the necessary medical and financial decisions on their behalf.  Often the next step for those clients is to file for guardianship of their loved one.

Many clients are often dismayed that guardianship is not a simple process.  A husband will often believe that they will naturally be appointed as guardianship for his disabled wife without much fuss, but the process may be much more complicated.  First, the court will appoint an attorney for the “alleged disabled person”.  That term of art is important because it underlines why the courts are very particular in how guardianships proceed.  It is up to the “Petitioner”, the one seeking guardianship, to prove that the alleged disabled person (“ADP”) lacks the capacity to make decisions for him or herself.  The court wants to make sure that the ADP indeed lacks the capacity prior to taking away that person’s rights.

The court appointed attorney will meet with her client and ask if they want to contest the guardianship.  The ADP’s answer is critical to how the case unfolds.  Sometimes this answer is driven by the ADP’s underlying medical condition and sometimes they refuse to believe that they cannot handle the decisions for themselves as they have always done.  If they want to contest the guardianship, then it will proceed like a normal civil case where both parties engage in discovery and the process culminates in a trial.  The ADP has a right to a trial by jury or can elect a bench trial (where the judge makes the final decision).

The process may become more complicated if someone else seeks to be appointed guardian as well.  This often arises where two siblings battle over who best would care for mom or dad when they are disabled.  It is possible for the litigation to be fought between three or more litigants with all sides fighting hard.

Having the right guardianship attorney on your side will help you navigate this complex area of law.  It can be maddening to have to fight so hard just to help your loved one, but it’s the unfortunate side of when the proper planning documents are not in place prior to the disabling event or disease.

David A. (Andy) Hall, Esq.
King|Hall LLC
410-696-2045
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
andy@kh.legal

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Trying to Prevent Estate Litigation through In Terrorem Clauses is Often an Empty Gesture

by David A. (Andy) Hall

Sometimes an estate client will anticipate that there will be a challenge to her estate after she dies –  and frankly if there is a house, then in this area its generally worth at least a couple hundred thousand dollars, thus, it’s worth fighting over.  Perhaps her children do not get along. Or there is a family business in which one relative has spent many years alongside to build and grow, and the client wishes to leave that relative a larger share of the business.  In an effort to prevent challenges to her will, a client may ask her estate planning attorney to utilize an in terrorem clause.  These can also be known as “no-contest” clauses.  An in terrorem clause essentially states that when someone objects or attacks the will (through the appropriate legal process), then the challenger will no longer receive a legacy or residual distribution that they otherwise would have received through the will.

Under Maryland law, an in terrorem clause in a will is void where there exists probable cause for instituting law suit.  Md. Code, Est. & Trusts Art. § 4-413.  Someone considering whether or not to challenge a will should consult with an experienced estates and trusts attorney to determine whether there exists probable cause to challenge a will.

An in terrorem clause is ineffective from preventing a challenge by someone who is disinherited as there is no stick (or carrot) to make the challenger think twice prior to challenging.  If they have nothing to lose, then there is nothing to prevent them from hiring an estate litigation attorney to challenge the will.

A no-contest or in terrorem clause may still be a good idea to include in your estate planning documents depending on your particular family dynamics.  While no clause can prevent all estate litigation, these clauses may be useful in preventing meritless litigation, i.e., a baseless challenge designed to extract a monetary settlement.  In addition, it may be a useful tool for your personal representative to use when negotiating a settlement with a will challenger as it can make estate litigation an all-or-nothing proposition.

No one wants to think about their family fighting over their estate.  Having a thorough and frank conversation with your estate planning attorney can help identify red flags and allow the planning attorney to attempt to draft around those challenges.  One such solution is appointing a third party as personal representative because the disinterested person can help prevent the estate administration from becoming a battle ground for long simmering family disputes.  Avoiding estate and trust litigation before it starts can save your family many tens of thousands of dollars in costs.

David A. (Andy) Hall, Esq.
King|Hall LLC
410-696-2045
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
andy@kh.legal

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Removing the Personal Representative of an Estate

by David A. (Andy) Hall

Here is the scenario: You are a legatee under a will, which means that you are entitled to “receive any property disposed of by will, including property disposed of in a residuary clause and assets passing by the exercise by the decedent of a testamentary power of appointment”.  See Maryland Code, Estates and Trusts Art., § 1-101(l)-(m).  The personal representative (the “PR”) (or what’s known as an executor in other states) is behaving in a way that you do not agree with.  Your question is whether or not you can have that PR removed.

The Maryland Code in Estates and Trusts Article, §6-306 states that there are six causes for the removal of a PR:

  1. Misrepresenting facts leading to her appointment
  2. Willfully disregarding the order of the court
  3. Incapable or unable to discharge her duties
  4. Mismanagement of property
  5. Failing to maintain an effective designation of a local agent (this is when the PR is not a resident of the State of Maryland)
  6. Failing to perform a material duty of the office

Whether or not a PR’s conduct rises to the level of a court removing that person requires an intensive factual analysis to be performed by your estate litigation lawyer.  Some examples of conduct that could lead to the removal of the PR include: attempting to admit the wrong (or a prior) will to probate, which could arise in a situation where one sibling is in one will and then subsequently left out of the estate in a subsequent will.  They would have a strong desire to gloss over the existence of the subsequent will.

The willful disregard of an order of the court is easier than some people may assume.  If the PR has failed to file an accounting within the proper time, then the court will likely issue a show cause order requiring the PR to either file the accounting or to demonstrate why the accounting has not been filed.  Perhaps the PR did not enlist the help of an estate administration attorney, then they could easily misunderstand these deadlines and what they mean.  Thus, innocently missing a deadline could lead to disregarding an order of the court and be grounds for removal.

If you believe that the PR of the estate is mishandling her duties, then you should contact an estate litigation attorney to have them evaluate the facts of your case.  The last thing that you want is to have bad acting PR wasting away assets that your family member worked hard to accumulate, spent time and money to effectively plan for the disposition of those assets after their passing, and then not be distributed in accordance with their estate plan.

David A. (Andy) Hall, Esq.
King|Hall LLC
410-696-2045
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
andy@kh.legal

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Appointing co-personal representatives is a recipe for trouble

by David A. (Andy) Hall

Ask your estate planning attorney whether you it is advisable to appoint co-personal representatives.  Co-personal representatives are two (or more) people named as personal representative simultaneously.   Successor personal representatives are named as backups in case your first choice is unable to serve whether by reason of death, incapacity or unwillingness to serve. You should always name at least one successor personal representative, but two is preferable.

In a co-personal representative situation, Maryland law by default requires the concurrence of all personal representatives in order to act on behalf of the estate.  This can lead to issues with the practical aspects of managing the estate, or it can create a friction point in an already tense family situation.

You should consider the motivations for wanting co-personal representatives. If you think that one person might not be able to handle the job alone, you are probably better off appointing someone else altogether. In general, one person will end up doing the majority of the work, but will be hampered by seeking the concurrence/assent of the other personal representative.

If there is a family issue, you can always appoint someone outside of the family. When there is a family dynamic where there is distrust, estrangement, or other issues, then the appointment of co-personal representatives may only serve to exacerbate the situation.

In short, appointing co-personal representatives can lead to unnecessary delay, arguments, or even litigation. It is best to name one trusted individual to serve as personal representative, and name at least one trusted successor.  Help avoid estate and trust litigation before it ever happens by contacting your estate planning attorney.  Make sure your attorney can competently guide you through not only proper tax planning and asset protection, but also provide counsel to avoid litigation before it starts.

David A. (Andy) Hall, Esq.
King|Hall LLC
410-696-2045
5300 Dorsey Hall Drive
Suite 107
Ellicott City, Maryland 21042
andy@kh.legal

457526bfb82f4540ba08c7cce8e707dd