Monthly Archives: September 2013

September 30, 2013

Contest A Trust While The Grantor Is Alive

by Carol Warnick

How many times have we been told by our clients that their dad would be having a fit if he knew that one of the children was contesting his estate plan?  Or how often have we heard that mom knew there was likely to be a problem at her death, and she tried to make her trust as bullet-proof as possible, but now that she is dead some child is trying to contest it anyway? 

Wyoming and several other states across the country are amending their trust code to allow the validity of a revocable trust to be contested while the grantor is still alive.  Wyoming’s statute is found at § 4-10-604, in the middle of Wyoming’s Uniform Trust Code.  It states that a proceeding to contest the validity of the revocable trust (or an amendment thereto) can only be brought the earlier of two (2) years after the settlor’s death or one hundred twenty (120) days after the trustee sent that person a copy of the trust and a notice informing of the trust’s existence, the trustee’s name and address, and the time allowed for commencing a proceeding.  For purposes of the 120 days, notice is deemed to have been given when received by the person to whom it is given.  Absent evidence to the contrary, it is presumed that delivery to the last known address of that person constitutes receipt by that person. 

The statute makes it clear that a person failing to commence a judicial proceeding contesting the validity of the trust within the time frames listed in the statute is forever prohibited from commencing any judicial proceeding contesting the validity of the trust.

The Wyoming legislature has now given Wyoming settlors the opportunity to make sure their estate plan can’t be contested by a disgruntled child after their death.  Instead, the settlor can have the trustee send copies of the trust and the notice described above out to their beneficiaries while the settlor is still alive.  It is much less likely that the would-be-disgruntled child will decide to bring a contest while their parent is still alive and can testify about intent.  However, the settlor will have to be willing to let the children see their estate plan in order to bring this about.  Dad won’t be able to hide behind the fact that he will be dead when the kids see how dad distributed his assets among the children. 

It will be interesting to see what happens in Wyoming over the next few years and see who takes advantage of this statute to be proactive and to preclude having their revocable trust challenged after death.  Stay tuned….

September 24, 2013

Fiduciary Solutions Symposium Recap

by Kelly Cooper

Last week, we held our first Fiduciary Solutions Symposium.  We want to thank each of you that came and participated.  We enjoyed seeing all of you and getting a chance to catch up with you over breakfast.

For those of you that couldn’t attend, here is a brief recap.  When we discussed topics that we wanted to present at the Symposium, we kept coming back to the constantly evolving and changing nature of our practices.  Whether it is taxes, ADR or changes in state laws, things never stay the same.  As a result, we decided to discuss a variety of topics and the trends we are seeing each day in our practices.  It was difficult to narrow down the topics to two hours of content, but we ended up discussing the following issues:

  • Digital Assets
  • Social Media and Use in Litigation
  • Gun trusts
  • Civil Unions/Same Sex Marriage and related tax issues
  • Reformation and modification of trusts and decanting
  • Apportionment and allocation of taxes and expenses in administration
  • Baby boomers and the “Silver Tsunami”
  • Migratory Clients and Differing State Laws
  • Trends in Alternative Dispute Resolution
  • Assisted Reproductive Technology

 We had so much fun that we are taking the show on the road and will be in Salt Lake City on November 12th.  We hope to see you there.

September 9, 2013

Tracking Digital Footprints

by Morgan Wiener

Anyone who’s taken a basic criminal law class, or watched an episode of Law and Order, knows that a defendant has the right to remain silent and that any statements he makes may be used against him in court.  But in today’s digital age where a person’s every thought is likely to end up posted somewhere online, perhaps a new warning should be given to potential litigants:  “Everything you post on Facebook can and will be used against you as an exhibit at trial.”

While all litigators are familiar with using letters and emails as exhibits to pleadings and at trial, it is becoming increasingly common to also use screenshots of Facebook accounts and other non-traditional methods of communication.  For example, I’ve used screenshots of Facebook pages to help prove when an opposing party had visited a certain city and print outs of text messages to help prove an agreement between the parties; I’ve also given advice about using damaging tweets as exhibits at trial.  With our ever-expanding digital footprint, it is important to advise clients that anything they put in writing, regardless of the form, should be considered permanent and could potentially come back to haunt them in a legal proceeding, although one would hope that most people would use some common sense and not, for example, confess to murder via a status update.

In addition to the issues with exhibits, there are other potential complications surrounding these newer methods of communication.  For example, if you are an attorney, what should you do if a client texts you?  Does this text become part of the client file and, if so, how should you preserve this communication?  What additional steps must be taken to subpoena text messages from a phone company?  If your client deletes his Facebook/twitter/instagram/match.com account after litigation has started, how do you address any issues surrounding destruction of evidence?

These questions are new and clear answers do not yet exist; however, it is important to look out for them and make your clients aware of the potential pitfalls.  While these issues are evolving, it may be safest to limit online activities to posting pictures of your latest meal and looking at images of funny cats.

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September 3, 2013

Where Art Jurisdiction?

by C. Jean Stewart

Because Colorado is a "hybrid" state in that only one judicial district has a specialized probate court (a distinction we share with only Indiana and Missouri), confusion about jurisdiction can sometimes contribute to discussion and debate. I have collected here several articles and a case relating to jurisdiction to assist in understanding the subject. One is an article I wrote for The Colorado Lawyer in 2004 about how probate courts are identified around the state. Subsequently, I wrote an article for Council Notes more specifically directed to how cases are assigned and coordinated between the Denver District Court and Denver Probate Court. Finally, the Colorado Court of Appeals, in reversing me in the Estate of Edna Murphy, provided substantial helpful guidance to all probate courts in determining what subjects fall within the meaning of the Colorado Probate Code and are appropriate for designation as "probate" cases to be heard by Colorado district court judges "sitting in probate."