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Abstract:
This article examines some of the provisions in the 2006 Uniform Power of Attorney Act and how they attempt to meet some of the challenges that durable powers face with a focus on formalities in drafting, standards of conduct for an agent, an agent's powers and authority, and overcoming the dishonoring of the document.

The UPOAA does an admirable job of modernizing power of attorney law to reflect legislative trends and collective best practices. The enhancements should facilitate the acceptance of durable powers and make it more difficult for devious individuals to abuse the powers. The Act, however, is not the "end all" of power of attorney practice, and thus the practitioner must be vigilant to ascertain the principal's desires, consider the applicable law and facts, and then customize the power to meet the client's needs.

power of attorney, agent, principal, Uniform Power of Attorney Act, disability planning

Abstract:
Humans and charities are no longer the primary entities many individuals wish to benefit upon death. Instead, there is a growing interest in providing for Rover, Fluffy, and Polly, that is, our beloved pets. There has been a recent surge of public interest in pet planning as high-profile individuals have died with significant provisions in their wills or trusts for the benefit of their animals.

This increase in the special estate planning needs of pet owners is reflected by legal scholarship, continuing legal education programs, and legislative action in the pet trust arena. But little time has been devoted to the tax ramifications of pet trusts although a brief discussions are included in several articles. The purpose of this article is to fill this gap and give practitioners guidance as to how pet trusts are treated for tax purposes and to suggest to Congress how the Internal Revenue Code should be amended to clarify taxation issues.

trusts, pets, animals, tax, income tax, estate tax, gift tax, wills

Abstract:
Have you ever been using your computer and unexplainably encountered the dreaded "blue screen of death" where work completely disappears and is replaced by a blue screen with white text indicating that an unrecoverable system error has occurred and that you must restart your computer and lose all unsaved data? If you have, you know the frustration and anger that follows especially because there was nothing you could do to prevent it. In the estate planning context, a malpractice action can be considered a blue screen equivalent. Fortunately, unlike the virtually unpreventable computer error, you have the ability to reduce tremendously the likelihood of estate planning "crashes."

This article discusses the potential liability of estate planners for malpractice, the common non-tax related mistakes attorneys may make while preparing estate plans, and the risky but commonly seen practice of preparing estate plans for both spouses.

estate planning, malpractice

Abstract:
This article reviews the legislation enacted by the 2009 Texas Legislature relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The reader is warned that not all recent legislation is presented and not all aspects of each cited statute are analyzed. You must read and study the full text of the legislation before relying on it or using it as authority.

wills, trusts, estate administration, probate, Texas

Abstract:
One of the oldest techniques used to protect the testator or settlor's intent for the distribution of his estate, including the transfer of property via trusts, is the use of the in terrorem clause, a provision that seeks to scare the beneficiary into acceptance of the instrument's terms by threatening to void the beneficiary's gift if his challenge to the instrument is unsuccessful. Many jurisdictions, including Texas, recognize the validity of such clauses. However, Texas case law is conflicting with earlier courts providing for strict enforcement and later courts discounting forfeiture if the beneficiary brought the case with probable cause and in good faith. This inconsistency and lack of statutory authority present the problem of unpredictability of utilizing in terrorem clauses. This article first observes the clause's history. It then examines the four approaches currently followed to evaluate the provisions by United States courts and legislatures. The focus shifts to Texas's use and judicial treatment of the clause, its validity in the state, and the uncertainty resulting from conflicting reported decisions. Finally, the authors address the need for a comprehensive in terrorem statute in Texas and conclude with a proposed statute designed to remedy the current inadequacies of the case law.

wills, in terrorem clause

Abstract:
Your client may have difficulty with communication, that is, the client may be unable to see, hear, write, or understand English. To effectively prepare a will for these clients, the estate planner must initially ascertain whether the client has a communication challenge and then take affirmative steps to make certain the challenge does not negatively impact the validity of the will. Extra attention must be given to make certain the requirements of a valid will are satisfied and that individuals displeased with the will do not use the communication challenge as a foundation for claims of undue influence or fraud. Even without other evidence, courts may subject the will of a communicationally challenged client to higher scrutiny. This article reviews a variety of communication challenges (visually impaired, hearing or speaking impaired, physically unable to sign, illiterate, non-English speaking) and recommends techniques to reduce the likelihood of these challenges playing a part in setting aside the testator's will.

wills, communication, blind, deaf, illiterate, estate planning

Abstract:
Most Americans do not execute wills and thus their estates become subject to the rigidities of intestate succession, which often defeat the decedent's intent for his estate. Four bold state legislatures created a new method of will execution in the 1980's: the statutory fill-in-the-blank form. This method goes far beyond the earlier models, which only supplied will provisions to be incorporated by reference. This article discusses the operation of statutory fill-in will forms, their benefits and advantages, and their problems and associated concerns. The article further examines the empirical findings of studies conducted by the author to determine how fill-in will forms fared in a cost-benefit analysis. The author lastly considers the future of statutory wills.

statutory fill-in-the-blank form, wills, will forms

Abstract:
An instrument is often made payable to multiple payees either jointly or in the alternative and for a variety of reasons. If jointly, the issuer is likely more concerned about the discharge of his obligation to all payees rather than the proper distribution of the proceeds. If made payable in the alternative, the issuer is not concerned with who actually obtains payment. However, expression of the issuer's intent is not always clear on the face of the instrument, causing ambiguity as to whom is required to endorse it. Because determining the issuer's intent is not controlled by the use of "and" or "or," the ambiguity results in litigation, frustration of the issuer's probable intent, curtailment of the rights of payees, and uncertainty in the proper application of Article 3 of the Uniform Commercial Code (U.C.C.). This article provides the first comprehensive analysis of the ambiguous multiple payee issue. The article begins with the historical development of multiple payee designations. Following, the author analyzes cases addressing the multiple payee issue, and subsequently critiquing the 1989 change made to the relevant U.C.C. sections. The article concludes with a proposal for a U.C.C. amendment which would resolve the ambiguous payee designation dilemma.

ambiguous multiple payee, uniform commercial code

Abstract:
Beginning in prehistoric times, animals and humans have enjoyed a special bond growing from the need for companionship and protection. The impact of pet animals on our lives continues today with upwards of 100 million American households owning pets. Many owners are anxious to make arrangements for the care of their beloved companions which will transcend death. The common law courts of England were relatively quick to accommodate pet owners by approving honorary trusts in favor of animals which, although not enforceable, permitted the trustee to use the property for the pet's benefit. This approach, however, did not cross the Atlantic. Attempted gifts in favor of specific animals usually failed for a variety of reasons such as for being in violation of the rule against perpetuities because the measuring life was not human, or for being an unenforceable honorary trust because it lacked a human or legal entity as a beneficiary who would have standing to enforce the trust.

Modern United States law reflects a shift away from non-recognition and even beyond the English view of acceptance to the actual enforceability of trusts for the benefit of animals. This movement has been gaining momentum at a rapid pace triggered, in part, by the approval of § 2-907 of the Uniform Probate Code by the National Conference of Commissioners on Uniform State Laws.

This article chronicles the evolution of gifts for the benefit of pet animals beginning with a review of the common law background and continuing with a detailed discussion of the wide variety of approaches the United States courts, legislatures, and commentators have adopted which range from total rejection to hardy embracement and many points in between. After establishing the current milieu in which a pet owner must function, the author emphasizes the importance of the pet owner considering both short-term care for the hours and days after the owner's death as well as long-term care for the duration of the animal's life. The author enumerates a variety of techniques available to the pet owner to maximize the chances of the pet receiving the desired care and recommends the use of a conditional gift in trust to the pet's caretaker.

animal law, trusts, pets

Abstract:
Wind development is at the forefront of our nation’s green energy trend. The importance of wind energy raises prospective legal issues, in particular to estate planners, regarding how those rights should be treated in their clients’ wills. Estate planners must be especially careful in determining their clients’ goals and assist them in achieving those goals. A testator who merely partitions his or her land into parcels of equal sizes in an attempt to make an equitable division to the beneficiaries might not achieve an equal distribution of wealth to each beneficiary because it is very likely that the shares will not have equal value. he shares of property with turbines, or the most turbines, will be more valuable than those without, or those with less. Additionally, the parcels with turbines would have less, if not little, surface area to enjoy quietly.

This article addresses some of the issues related to testamentary transfers of wind rights to increase the likelihood that your client’s will accurately reflects his or her testamentary intent.

wills, wind, estate planning, green energy, turbines

Abstract:
Trusts and estates law is continually evolving. Factors contributing to change include an increase in life expectancy, numerous advances in medical technology, the increased geographic mobility of individuals, the growing use of revocable trusts as substitutes, the trend to abolish the rule against perpetuities, and restrictions on the ability of creditors to reach self-settled trusts. This article explores some of these trends and others that will affect the practice of trusts and estates law in the near and distant future. Sections of the article include retirement funding, physical and mental health issues, revocable trusts, uniform state rules, ante-mortem probate, estate and gift tax reform, modernization of trust law, nontraditional families, estate administration, and nonprobate assets.

trusts, estate planning

Abstract:
Most pet owners are extremely devoted to their pets, often considering them members of the family. This devotion can carry over into the owner's will or trust, leaving gifts for their pets in such instruments. More recently, courts and legislatures are approaching gifts to pets more favorably and have been increasingly likely to permit such arrangements by applying a variety of techniques and policies. This article discusses a number of techniques currently available and the advisability of utilizing each of them. While the amount of legislation enabling pet owners to care for their pets in the short and long term is increasing, other non-statutory methods remain available to carry out the pet owner's wishes for their "other" loved ones.

*Winner of Probate and Property 2001 Excellence in Writing Award-Best Overall Article (probate and trust).

animal law, wills, pets

Abstract:
This article surveys the law of wills and trusts in Texas during the Survey period of October 1, 2005 through September 20, 2006. The article discusses pertinent judicial developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. Discussions of most of the cases cited include a moral, an important lesson to be gleaned from the case which results in an opportunity to apply that lesson to the advantage of the reader's client.

wills, trusts, estate planning, Texas

Abstract:
This article surveys the law of wills and trusts in Texas during the Survey period of November 2, 2003 through November 1, 2004. The article discusses pertinent judicial developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. Discussions of most of the cases cited include a moral, an important lesson to be gleaned from the case which results in an opportunity to apply that lesson to the advantage of the reader's client.

wills, trusts, estate planning, Texas

Abstract:
This article surveys the law of wills and trusts in Texas during the Survey period of November 2, 2002 through November 1, 2003. The article discusses pertinent legislative and judicial developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. Discussions of most of the cases cited include a moral, an important lesson to be gleaned from the case which results in an opportunity to apply that lesson to the advantage of the reader's client.

wills, trusts, estate planning, Texas

Abstract:
We are certainly in an electronic age. Society has made a definite transition from the use of paper to an overwhelming reliance on electronic transactions. This development has not escaped notice by the estate planning community, especially in the matters of advanced directives. This article examines whether the time has come to bring wills into the digital age, particularly in light of the necessity to preserve the physical representation of the testator's desires. The article outlines the historical development of the writing requirement beginning with the ancients to modern day. The authors then address the policies supporting the writing requirement, the expansion of what may constitute a "writing," and the barriers which must be surmounted before electronic wills are viable. The article concludes with an analysis of the question posed, whether, upon examination of the history and policies of the writing requirement, as well as the challenges faced by electronic wills, now really is the time for digital wills.

wills, digital wills, electronic wills, estate planning

Abstract:
Most pet owners are extremely devoted to their pets, often considering them members of the family. This devotion can carry over into the owner’s will or trust, leaving gifts for their pets in such instruments. A will or trust involving the pet can be important to the veterinarian because, for example, a trust could specify whether and under what circumstances a medical procedure or euthanasia may take place. This article provides an overview of pet trusts, including historical background and current developments, pet trust basics, and a discussion of key concerns for veterinarians relating to pet trusts.

pet trusts, pet wills, veterinarians

Abstract:
This article consists of two sections: (1) a case law update written by Gerry W. Beyer, and (2) a statutory update authored by Jerry Frank Jones. The case law update addresses the pertinent judicial developments that took place in Texas regarding the law of intestacy, wills, estate administration, trusts, and other estate planning matters during the Survey period of October 1, 1998 through September 30, 1999.

The statutory update looks at the substantial changes made to the statutes governing probate, wills, guardianships, and trusts by the 1999 Legislature. The section also discusses two bills vetoed by the Governor concerning guardianship and probate.

intestacy, wills, estate planning, Texas

Abstract:
Most jurisdictions within the United States currently utilize the post-mortem model of probate, in which a person of legal age and sufficient mental health plans for the distribution of his estate at death, allocating certain shares to those individuals deemed most deserving. This intent is formalized in a will, dormant until the death of its writer, upon which it will be made public to proclaim donative intent and assure that the estate is distributed in accordance with the testator's desires. However, this model is not full-proof and can often create will contests resulting in the exact opposite of the testator's wishes.

A substitute for post-mortem probate is to validate the testator's will during the testator's lifetime, known as ante-mortem or living probate. This article addresses the issues that can arise with post-mortem probate and the unsuccessful techniques that fail to resolve these problems. As an alternative, the authors look at three modern ante-mortem probate models, the three states with ante-mortem statutes, and the unsuccessful efforts to develop and approve a uniform act. The authors also urge the benefits of ante-mortem probate and argue why it should have a place among existing probate models.

probate, wills, ante-mortem

Abstract:
The post-mortem probate model overwhelmingly used in the United States is significantly deficient because the one person who would know the testator's desires best is the testator himself, who is deceased and unable to testify as to his capacity, intent, and freedom from undue influence. This situation presents the problem of illegitimate will contests that eat away at the corpus of the estate no longer protected by the evidentiary power that lies buried with the testator. The pre-mortem or "living" probate offers a solution by conducting proceedings for validating the will while the testator is still alive. This article discusses the development and models of ante-mortem probate, their benefits, and their deficiencies. The author concludes by advising jurisdictions lacking pre-mortem probate to consider adopting procedures that convey the benefits of this technique to their citizens.

*Winner of Probate and Property 1993 Excellence in Writing Award-Best Cutting Edge Article (probate and trust).

pre-mortem probate, ante-mortem probate, living probate

Abstract:
The majority of Americans fail to execute a simple will, much less prepare a comprehensive estate plan in the event of lifetime incompetency or death. The increased popularity of fill-in-the-blank forms for will terms and provisions has made the ability to create a will a little more user-friendly. However, this method of will creation has both advocates and critics. This article analyzes the debate by providing a detailed theoretical and empirical critique of statutory fill-in will forms by discussing arguments supported by existing evidence as well as hypothetical concerns. The author's analysis is three-fold. First, it looks at the potential repercussions of statutory fill-in will forms on both the non-legal and legal communities. Second, it provides the results of two pilot studies: the first designed to ascertain the ability of individuals with various education levels to complete the forms satisfactorily and the second focused on the opinions of estate planning practitioners and probate judges regarding statutory forms. And third, the author predicts the future of statutory fill-in forms for the next ten years. The author concludes with recommendations for the forms' continued development and review.

wills, fill-in forms

Abstract:
The legal system has increasingly utilized modern technology in carry out its duties including, more recently, the videotape. It thus would seem that serious consideration of using videotapes in a will situation is warranted. This article delineates the uses of videotaping will execution ceremonies and the theories of admissibility of the videotape to prove the testator's statements made contemporaneously with the will execution. This can be distinguished from the more traditional and established methods of acquiring admission of the testator's declarations. Also detailed are the substantive and technical contents of the videotaped will execution ceremony. The article further presents the benefits as well as the potential difficulties of using videotape for this purpose. The author concludes with a look to the future: the possibility that a will execution videotape could serve as the will itself.

wills, video will

Abstract:
The modern technology of video recording presents an inexpensive, convenient, and reliable method of preserving a testator's testimony. This article addresses such use of the video recordings in will execution ceremonies to help avoid successful will contests and maintain the implementation of the testator's final wishes. The author provides an outline that may be followed when recording a will ceremony. Also included is a list of advantages and disadvantages of this procedure. Lastly, the author discusses the potential use of the recording to serve as the will itself.

wills, estate planning, video recording

Abstract:
History has revealed a long-standing tradition of affording legal protection to adults unable to act for themselves. American jurisprudence has shifted from addressing the guardianship of incompetent persons in the law of equity to heavily regulating these matters statutorily. State regulations often prioritize which persons may be appointed as guardian of the ward's person and estate. This article considers to what extent an incapacitated person may influence or control the court's selection of the ward's guardian. Because the an incompetent person retains his emotional and psychological self-worth, his interests and desires should be considered, something statutory prioritization often does not do. An incompetent's legal right to determine his fate is ever-increasing. This article highlights the growing trend in the United States to permit competent individuals to select their guardians pre-incompetency. The forms utilized in a few states to effectuate this pre-selection are examined and their effectiveness critiqued. The author recommends that each jurisdiction enact a free-standing self-designation of guardian act that encompasses a statutory fill-in-the-blank form. There should be greater access to and simplicity of specially designed statutory fill-in forms.

guardianship, forms

Abstract:
The trust is a fundamental part of the American legal system, and, like much of this system, the creation of a trust can be a long, complicated, and expensive process. The costs of this process thus limit the number of people able to sustain such expenses. To make the benefits of trusts more widely available, legislative enactments simplifying the process or reducing the length of such documents have emerged. One such statutory creation is the Uniform Custodial Trust Act (UCTA). Also on the fringe of emergence is the statutory inter vivos trust form. This article traces the evolution of inter vivos trust instruments, beginning with a review of the early legislative steps taken to simplify trust instruments. Subsequently, the article focuses in depth on the UCTA, with an analysis of how well the Act effectuates the purposes for which inter vivos trusts are typically created. Also addressed is the potential use of statutory fill-in-the-blank forms for inter vivos trusts. The author concludes with the recommendations that (1) all state legislatures should enact the UCTA and that (2) all state legislatures should give serious consideration to statutory fill-in forms for inter vivos trusts.

Uniform Custodial Trust Act, inter vivos trust, forms

Abstract:
The use of videotape is increasingly becoming a common medium utilized by the legal profession. The areas of estate planning and probate are no exception. The suggestion to videotape the probate process began in the early 1980's. Although there has not been much litigation over the use of the videotape in this context, this does not reflect poorly on the value of probate video. Instead, the lack of case law is likely due to other reasons, more fully explicated in the article. Because the nexus between videotape and the probate process is rapidly growing, it is important to look at the use of videotape in the probate process and its advantages, barriers to its admissibility in probate and ways to overcome them, and the evidentiary requirements of videotape. The article also discusses a survey conducted by the authors of probate judges' receptivity to probate video and reviews the sparse legislation, both existing and proposed, of the use of videotape in the probate process. The authors conclude their analysis by speculating on the future use of videotape in probate actions.

video will, probate, probate video

Abstract:
This article discusses judicial developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters during the Survey period of November 1, 2007, through October 31, 2008. The discussion of most cases includes a moral that is the important lesson to be learned from the case. By recognizing situations that have resulted in time consuming and costly litigation in the past, the reader may be able to reduce the likelihood of the same situations arising with his or her clients.

wills, trusts, estate planning, estate administration, probate

Abstract:
The wills, trusts, and estates casebook market has long been dominated by excellent, time-tested works, I several of which are in seventh editions. It took considerable gumption for Professors Raymond C. O'Brien and Michael T. Flannery to enter into this mature marketS with the 2006 publication by Carolina Academic Press of their law school course book entitled Decedents' Estates: Cases and Materials (hereinafter the Casebook). Unexpectedly, the Casebook provides a viable option to these well-established works by providing a fresh approach while maintaining the necessary coverage of traditional topics.

casebooks, wills, trusts, estate planning