Elizabeth will be a frequent guest blogger on Sui Generis and, not surprisingly, will be posting about trusts and
estates, and Medicaid and elder law issues.
Her first post follows:
Here is the outline of a current case that all you practitioners can use as a horror story to scare your clients into completing their estate plan (or your colleagues; we all know how few attorneys actually have a current estate or business succession plan in place).
We represented a husband and wife, who had a living trust. Both spouses died in the past year, and the successor trustee was their only son. Because they had a trust, the administration of their estates went smoothly, and the son transferred all the assets to himself pursuant to the trust.
All that remained was for us to file trust income tax returns when the son suddenly died. The next named trustee was a niece of the grantors, so the trust administration could still be completed without much trouble.
However, not only did the son not have his own trust, he didn’t even have a will. Despite numerous entreaties from our firm, the son had never completed any sort of estate plan. He just didn’t want to think about planning for his own death.
Now we had an intestate probate estate containing all of the assets of the parents that, through the planning we had done, had just bypassed probate entirely. Worse, we didn’t know who would, or even could be appointed to administer the son’s estate. He was an only child.
The father was an only child. And the mother had some distant siblings, only one of whom was living, and some nieces and nephews. The niece who had been named as successor trustee of the parents’ trust agreed to handle the son’s estate and petitioned to be appointed administrator. She was the daughter of the mother’s surviving sister, and therefore, not a distributee who was eligible to be appointed pursuant to the statute (S.C.P.A. §1001(1)). However, if her mother and surviving cousins (only about half of whom had been located) consented to her appointment, the surrogate’s court could grant her petition (S.C.P.A. §1001(6)). And then her mother died…
Stay tuned to find out if we locate the missing cousins, whether we have to hold money in trust for them, and whether we need to probate the aunt’s will so that the niece can make distributions from the estate to herself.