Monthly Archives: September 2013

Jim Thorpe’s burial remains at issue 60 years after his death

Estate Administration, Probate

When many of us in Odessa think about what dying without a will might mean, we often don’t think about possible litigation over our remains, yet this is exactly what is happening to Jim Thorpe 60 years after his death. Thorpe, one of the most famous Native American athletes in our country’s history, died in 1953, but he died without a will. Although it appears that his surviving family members are not fighting about his estate or his money, they are fighting about the best possible place for his remains.

Thorpe was going to be buried in Oklahoma, where he was originally from, yet his widow had his body sent to Pennsylvania in the middle of his funeral service. The town she chose agreed to rename itself after Thorpe, as well as build a memorial for the famed athlete.

Had Thorpe died with a valid will, however, he could have clearly indicated what he wanted after his death. He could have listed where he wanted to be buried and what sort of memorial, if any, should be built. Without a will, his funeral service, burial and memorial were all dependent on what others claimed he wanted. For Texans looking to have some control over where they are buried, including that information in a will is quite important.

Yet, because Thorpe did not record his wishes in a will, his family is continuing to fight about where he should be buried. His sons are fighting to have his body moved back to Native American land in Oklahoma and a federal judge has recently ruled in favor of the sons.

The town in which Thorpe is currently interred has filed an appeal.

Source:The Pike County Courier, “Pa. town appeals to keep body of Jim Thorpe,” Michael Rubinkam, Sept. 24, 2013

Hudson News family in court over patriarch’s final will

Heirs & Beneficiaries

Anyone in El Paso who has done much traveling has probably come across a Hudson News stand on his or her journeys. With stands across the country, the man behind Hudson News was worth over $805 million when he died five years ago. It was after his death, however, that things started to unravel for the family members of the late Robert Cohen.

According to Cohen’s final will, his son was to inherit $600 million, the bulk of the estate. Cohen’s granddaughter, however, the only child of his only daughter, received only a small inheritance. She is now accusing her uncle of using undue influence on her grandfather to get a larger slice of the estate.

There is more to making a will than just spelling out who will get what. Whenever someone in Texas wishes to make a will, he or she must have the capacity to do so. This means that the individual is of sound mind and that no one has been pressuring him or her into making certain bequests. If an estate litigation can prove that the will was created without the necessary capacity or that there was undue influence, the court may throw the will out, greatly changing some inheritances.

While Cohen’s granddaughter is arguing that her uncle was using undue influence to increase his inheritance, the uncle has argued that there was nothing improper about Cohen’s changes to his will. In fact, a judge had previously determined that Cohen was indeed competent when his will and, thus, the will should stand as it is.

This estate litigation has already lasted five years and it is expected that the trial could go through next month.

Source:The Bergen Record, “Pretrial motions heard in billionaire Perelman-Cohen family feud,” Kibret Markos, Sept. 18, 2013

Proper estate planning should also include technology

Estate Planning

It is something that many people in west Texas haven’t thought about, but what happens to online banking, email or Facebook after someone dies? If the individual didn’t leave the login information, the data and sometimes the value of the digital property may be lost forever, but not if the individual had a thorough estate plan in place.

So, should someone leave all of his or her usernames and passwords in a will? No. Because wills can be made public, any login information should be written out in a separate letter and the letter can be inherited by a family member or friend.

But what about the pieces of digital media that rely on a license?

If something has a license, it cannot be inherited. This means that if someone wants to not only give access, but allow something online to continue, the license may need to be put into a trust. This would allow the license to continue on, even after the original owner had died. Many states, including Texas, do not have laws on the books that protect digital property. If Texas does go down this route, it may wish to give a fiduciary the right to distribute an individual’s online property.

Even though someone may not think about who should inherit online assets, there are more and more people asking about what will happen to their social media or digital assets after they die. Through traditional estate planning, individuals may have reliable ways to preserve their property and pass it on after death.

Source: TheWall Street Journal, “Make Sure You Know Who Will Inherit Your Twitter Account,” Arden Dale, Sept. 18, 2013

Update wills after major life events to keep estate plan current

Heirs & Beneficiaries

Earlier in the week we talked about how estate planning is a continuous process and that it is important to reexamine the various vehicles that make up your estate plan. In the same vein, making a will once may not be sufficient to clearly communicate your wishes. Say, for example, you made a will right after you graduated from college, leaving half of your estate to a sibling and half to a girl- or boyfriend. If you don’t touch that will again it will be the controlling will at the time of your death. Imagine if half of your estate went to a man or woman you haven’t dated since you were in your 20s while your spouse and children were left with little to nothing.

After major life events, like entering a long-term relationship, marriage or having children, it is important that people in Odessa take a look at estate planning documents. Since no one knows when he or she will die, it is crucial that updating a will doesn’t get put off until it is too late.

Unfortunately for one man, he never took the time to update his will, which means that when he died earlier this year, his will from 1990 controlled how his estate was divided. This would have been fine, except it disinherited his partner with whom he had been living since 1995. While this happened in Washington, D.C., there are many same-sex couples in Texas who could be in similar situations if they don’t update their wills.

The man’s siblings received his $819,000 estate while it appears that his partner has received nothing.

Source:ABA Journal. “Gay man asks DC court to declare him common-law husband of deceased partner,” Mark Hansen, Aug. 20, 2013

Estate planning is a continuous process

Estate Planning

One of the most important things El Paso County residents can do is create an estate plan. Regardless of age, an estate plan is the only way to ensure that an individual’s wishes are carried out after his or her death. Creating the estate plan, however, is only the first step, as estate planning should be a continual process. Things change, how people want their estates dealt with change and the benefits of one estate planning vehicle may change over time, too.

Take, for example, trusts. There are numerous tax advantages associated with trusts, but some of those advantages may no longer be as important as they once were. One of the biggest benefits to a trust is that it avoids federal estate taxes, but since the individual exemption for estate taxes is now $5.25 million and $10.5 million for couples, estate taxes really only apply to very wealthy people. Perhaps it would be worthwhile to talk with an estate planning lawyer and end a trust and explore other vehicles.

It is an estate planning attorney’s job to track changes in federal and state laws that affect existing estate plans. If a plan no longer works or is no longer the best option for an individual, he or she will want to modify his or her estate plan with an attorney’s help.

Instead of relying on trusts to avoid estate taxes, many people are using intrafamily loans to avoid high income taxes. This certainly doesn’t make sense for everyone, but it is an important option that many people in El Paso County will want to take into consideration.

Source:Wall Street Journal, “Estate Plans Shift Focus to Income Tax,” Arden Dale, Sept. 6, 2013

Being appointed as a guardian is a complex process

Guardianships

There are many people in Andrews who know people who are unable to care for themselves. Whether they are old, have cognitive disabilities, or are otherwise unable to make financial or medical decisions, guardianship is an important tool to make sure their rights are protected. Much of the time, the individual needing assistance, also called a ward, did not plan on needing a guardian and so someone must be appointed as a guardian by a Texas court.

It sounds easy enough, all a relative or friend must do is go to the court and ask to become a ward’s guardian, right? Wrong. The process requires considerable proof that the ward actually needs a guardian and a court needs to agree that the prospective guardian is appropriate.

The whole process will likely require a prospective guardian to consult a guardianship lawyer. Even after the individual has been appointed as a guardian, he or she will need to comply with strict reporting requirements or risk being accused of inappropriately spending a ward’s money. Working with a lawyer can also help to determine what is a qualified cost and what would draw the court’s suspicion.

After several rounds of reporting, some judges may discontinue future updates, but there is no guarantee that reporting will stop.

Granted, being appointed as a guardian is not the only way to become one. If a future-ward may suspect that he or she will need a guardian at some point, he or she can create an estate plan that includes who should be appointed guardian in the event that the ward cannot make his or her own decisions.

Source:Fox, “What You Should Know About Guardianships,” Andrea Murad, Aug. 30, 2013