Welcome to ICLEF.org. Below is the fourth installment of our newest blog ICLEF Law Tips. Written on a weekly basis by Nancy Hurley, you will find all sorts of gems pulled from some of our most recent CLE seminars. Please visit us a weekly basis to find new legal blogs and CLE seminars from ICLEF. To read all of our Legal Tips blogs Click Here.
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Our topic for “Law Tips” this week is “Probate.” Staying on top of the latest developments in this area and keeping your focus on the outcome of every action can be a challenge. ICLEF seminars from the past year presented volumes of potential advice on the subject. But, after all, I want to keep these Law Tips brief yet bountiful. Therefore, this week’s blog draws wisdom from three of the 2011 CLE programs: “Probate Litigation,” “Year In Review” and “120 Hot Tips in Estate Practice.” Following are five tips each from four faculty members that offer avenues to lead you in the right direction on a future probate issue.
During his ICLEF presentation on “Probate Mediation Tips” Michael P. Bishop, Cohen, Garelick & Glazier, Indianapolis, makes these suggestions on how a prudent lawyer could “Be Creative:”
1.Consider alternative forms of asset transfers
2.Consider the tax ramifications of all decisions
and modify proposals according
3.Consider dividing life estate and remainder
interest in real property to promote resolution
4.Consider mediation/arbitration for future disputes regarding
enforcement or property distribution
5.Consider the Mediator’s Proposal
“5 Ways to Discourage Probate Litigation” are practical reminders across the board for lawyers and clients from Jarrell Hammond, Lewis Wagner LLP, Indianapolis:
1. Don’t play favorites. If you have 4 kids, leave it to 4 kids equally. Fair does not
always mean equal, but equal will avoid litigation.
2. If you plan to play favorites. If you are going to leave your estate unequal, or in an
unusual manner, communicate it prior to death. Whether in a meeting or with some type of
writing. Let the interested parties know what you are going to do. Many will contests occur
because testators keep secret their intent, which is certainly their right, but it leaves the
beneficiaries to clean up the mess.
3. Lawyer as a witness. Philosophies on this topic differ, but if the drafter of the will is
also a witness, it is helpful to avoid litigation. No decent lawyer would prepare and witness a
Last Will and Testament if he/she couldn’t attest as to the sound mind of the testator.
4. Keep good notes. The file should reflect your estate planning meeting with the
testator. Have more than one meeting. Send the testator a draft to review and think about, rather
than sign after the first reading in the office.
5. Spend it all. No better way to avoid a will contest than to have spent all the money
before death.
John O’Drobinak, Crown Point, during his presentation on “What Have They Done For Us, Or To Us, In 2011!,” shared “Things to Consider” that are drawn from his many years of probate practice. Following is a selection of five of his alphabet of considerations:
O. It is of the utmost importance for you to become familiar with the new TOD law (I.C. 32-17-14-1, et seq.) by reading the law and attending seminars on this topic. It can have a major impact on your estate planning practice;
P. When drafting a Trust ALWAYS insert a provision stating what state’s law is to apply in administering and interpreting the Trust for all purposes;
Q. If you are making photocopies of a Will, DO NOT remove the staples. This could become an issue in a Will contest. Simply fold the cover and the pages over to make your copy;
R. Absolutely follow the rules about execution of a Will. Do not deviate from them;
S. If the services of an interpreter are needed, NEVER use a family member. Retain the services of a disinterested third party at the expense of your Client;
To keep you current in probate case law, Robert W. York, Robert W. York & Associates, Indianapolis, Indiana, listed five significant 2011 cases that he advised lawyers to examine. (His discussion of these cases is available in the manual for the CLE program: “120 Hot Tips in Estate Practice,” December 20, 2011)
1. Avery v. Avery, 953 N.E. 2d 470 (Ind. 2011)
2. In re Edwardson Revocable Trust, 949 N.E.2d 851 (Ind. App. 201 I), transfer denied (Oct. 6,201 1)
3. In re Guardianship of J.Y., 942 N.E.2d 148 (Ind. App. 2011), reh’g denied, transfer denied.
4. In re Guardianship of Stalker, 953 N.E.2d 1094 (Ind. App. 2011
5. Scribner v. Gibbs, 953 N.E.2d 475 (Ind. Ct. App. 2011)
I hope you found a tip or two in this Probate Law Tip, at least a helpful reminder, that you will make use of in your practice. Our appreciation to the faculty members for allowing us to share their words of wisdom. If you wish to consult further the written materials for the CLE programs mentioned above, the manuals are available by Clicking Here. The video replays of two of these seminars are scheduled in various locations around Indiana during the months of January and February. Consult the ICLEF calendar for a location near you by Clicking Here.
We welcome your discussion of these probate issues or anything ICLEF-related on our Facebook page at www.facebook.com/ICLEF.
