Legal News and Updates
- Fall is Here - It's Time to Clean up Your Estate Plan and Ready it for Winter!
- Are the Releases You Sign Before a Field Trip or Fun Activity Enforcable?
- What Should you do if you or Someone you Love is in an Injury Causing Accident?
- Being Prepared for Times of Crisis
- Do you Have Enough Insurance to Protect Your Family?
- The Revised Uniform Fiduciary Access to Digital Assets Act
- Fiduciaries May Request Waiver of Court Approval to Change Nature of Investment and May Invest in Income-Producing Property
- Recent Amendments to Statutory Provisions Regarding the Administration of Estates
- Witness Signatures on a Self-Proving Affidavit May Be Considered Signatures to the Will for Wills Executed Prior to July 1, 2016
- The Right to Communicate With Other Persons May Be Removed From Ward
- Increase in Amount Financial Institutions Can Pay Out Without Probate Proceedings and Amount Life Insurance Companies Can Pay Out With Minimal Documentation
Fall is Here - It's Time to Clean up Your Estate Plan and Ready it for Winter!
For estate administration attorneys, there is nothing more difficult than telling family members that although their loved one took steps to put an estate plan in place, steps were not taken to implement the plan. What do we mean by implement? The fundamental purpose of a Will or Trust is to describe how you want your assets to be distributed upon your death. But a Will only applies to assets that pass through the Will via probate, and a Trust only applies to assets that pass through the Trust (via trust ownership or beneficiary designation). Unfortunately, it's not enough for you to just sign the documents, you have to make sure that your assets will be handled the way you planned. As you enjoy the fall weather, take time to go through your estate plan clean-up checklist:
- Original Documents: Are your original estate planning documents in a safe place, i.e. a safe deposit box or a safe at home, where they are less likely to be lost, destroyed or stolen?
- Copies: Are you keeping copies of the documents separate from the originals and in a place you will remember? In the event your original documents are lost, damaged or stolen, it may be possible to use the copies so keeping them separate is good practice. Some documents provide that electronic copies are to be treated the same as originals; scanning your documents so you have electronic copies can also be helpful. It's perfectly okay to separate your originals and copies, and even do away with the outer binder/folder/package your estate plan came in if it does not fit in your safe/storage places. The documents are the important items.
- Beneficiaries: This is the area that is most often overlooked in completing an estate plan but it is the most critical. There is no "one size fits all" for beneficiary designations. If your estate planning attorney provided you with instructions on making changes, then now is the time to make sure you have followed through. If you are unsure about how your beneficiaries should be listed, then now is the time to consult with a professional.
- Trust Ownership: If you have revocable living trust, then assets which are titled to the trust (also known as "funding" the trust) will avoid probate. Not all assets are appropriate for changing the ownership from the individual to the trust - life insurance and qualified retirement accounts like IRAs are two such assets - but typical assets we transfer to trusts are bank accounts, investment accounts and real estate. As with beneficiaries, if your estate planning attorney provided you with instructions on funding your trust by transferring ownership of assets, then now is the time to make sure that those ownership changes are done, or consult with a professional on what steps need to be taken.
- Health Care Documents: Have you provided copies of your health care power of attorney/advance directive/living will (you may have one or more of these documents) to each of the persons you named to act for you? Have you provided copies to your primary care doctor, any specialists, and the hospital system you primarily use?
- Financial Power of Attorney: Our office generally recommends that you not give your named agents copies of your financial power of attorney in advance, which helps guard against the potential for misuse. Instead you should tell them where to find it in the event you need them to act for you for any reason. As with any rule, there are exceptions, for example:
If you have added a child or children to your bank accounts as joint owners so that they can help you pay bills, etc., then you are exposing your accounts to your children's potential creditors, potential divorce marital claims, or potential seizure in the event of a child's bankruptcy. It would be better to remove your children as joint owners and instead provide the bank with a copy of your power of attorney so that your children can still act for you, but in an official capacity, with no outside exposure.
As with most chores, cleaning up these items is not the most fun, but it is critical to making sure your estate plan is completed. To help clients memorialize their hard work, we have created a "Letter of Instruction" form for clients to fill out and provide to their agents/executors as a road map of what to do and where to find important items. If you would like a complimentary copy of this form, please email us at firstname.lastname@example.org.
In the summer of COVID-19 we are all looking for fun things to do with our families, especially outside where we can get some fresh air and maybe some adventure. Many of those fun adventures come with a Liability Waiver you are asked to sign. You want to ride a horse, go kayaking, or parasail at the beach? You must first sign a waiver. Even to send our children on field trips, church trips, or to the daycare, we are asked to sign a Liability Waiver. Which leads so many of you to ask me, are these waivers enforceable? My lawyerly response is MAYBE. Certainly an adult can waive liability for the negligent conduct of a service provider, so your waiver is likely enforceable. As to whether a parent can waive their child's claim for the negligent conduct of a service provider, I challenge that. But the parent may be waiving their own claim for losses caused by an injury to their child such as for medical expenses the parent must pay. So what are we to do? Often, if we want to participate in the activity we have no choice but to sign the waiver. The teen at the checkout counter likely does not have the authority to negotiate with you on that point. But do not sign waivers when you are not absolutely required to do so and it is okay to ask "Do I have to sign this to participate?". When they are required, read the language and make sure it is fair and makes sense to you. Be sure you are really comfortable with the service you are signing up for, recognizing that you are accepting the risk that something might go wrong by moving forward. If the worst happens, contact a lawyer immediately. Not all waivers are enforceable in all circumstances. If the conduct of the service provider was grossly negligent, reckless or intentional for example it could negate the effect of the waiver, but proving that will likely require an investigation of what happened and that should be done as soon as possible. Life is full of risks. Just take them knowingly and responsibly.
We don't like to think about it, but it happens so I want to share some tips with you on what you should do if it happens in your family.
- Get Medical Attention. If an incident happens and you think you may have been injured, go ahead and get checked out by a doctor without delay. Waiting to seek medical attention may cause someone later to question whether you were injured in the event even though we know sometimes the physical pain does not set in for a day or two.
- Make a Report of the Incident. If you are in an auto accident, call the police and make a report. If you fall at a public place, ask to have an incident report prepared and ask for a copy of that report.
- Get Information. Get as much information as you can about the person(s) or business who caused your injury. If it is a person, get their name, address, phone number, email, place of work. Get a business card or a take a picture of their license and license plate with your phone. If you are injured at a business, get the names of the employees involved and the name of the manager on duty.
- Take Photos. Take photos of the scene and any evidence. Take photos of the damage. Take photos of the injuries.
- Notify the Insurance Carriers. If you are in an auto accident, get all parties' insurance information and notify your own insurance carrier and the carriers of the other drivers. If you are injured at a public place, ask for the insurance information and report the claim.
- Be Cautious about Statements. Be cautious about making statements (other than to the police) until you have consulted with an attorney. Be cautious about giving recorded statements without first consulting with a lawyer. Do not give statements while you are hurting or taking pain medication or are otherwise under stress from the injury causing event. It is okay to say that you are not in a condition to talk about the incident right now.
- Consult with a Lawyer. There are deadlines to make claims for injury causing incidents. Sometimes there are steps that must be taken within a certain timeframe before a claim can be filed. It is best to at least consult with a lawyer early on to find out what these deadlines are in your situation.
One thing about this Pandemic is that it has not stopped us from doing what we do best - helping our clients plan for the future and navigate through difficult times.
Thinking along those lines, we have some tips and reminders for you about being prepared for crisis.
- Keep original important documents (such as Powers of Attorney, Healthcare Directives, Estate Planning Documents) in a safe place AND also make sure that the persons who may need to access and use those documents for you know where they are so that they can be located and used quickly in an emergency.
- Keep handy (so those same helpers can find it) a list of things that someone would need to know if they were covering for you in a time of crisis. Sometimes we find that even spouses do not know the details of matters the other handles for the family. The list should include information about bank accounts, income, and other assets, as well as expenses that need to be paid if you are unavailable.
- Keep handy a list of usernames and passwords that your trusted someone may need to use for you.
- Keep a list or copies handy of your family's health insurance information and any disability insurance information that might be needed.
- Keep handy information regarding your medical history and underlying health conditions, regular medical providers, and medications you take. Do the same for other family members for whom you are responsible (children, parents).
These steps are simple, but they will make a world of difference to your trusted helpers during a time of crisis.
One thing I have learned after twenty-six years of representing clients who have been injured and clients who have been sued is that most people do not have enough insurance. For purposes of this discussion, I will focus on your automobile insurance and your personal umbrella policy. These insurances protect you in two ways. One, these insurances will defend you and pay for damage when someone is hurt in a car accident with you or your family member. These insurances may also provide coverage to you and your family members for your own injuries. But how do you know if you have enough coverage?
For purposes of determining whether you have enough insurance in the event you get sued you need to really identify what assets you are trying to protect and what type of financial harm could occur if someone were hurt as a result of your negligence or the negligence of a family member. With auto insurance, I often hear folks say they have "full coverage". Well having "full coverage" could just mean that you have the state required minimum insurance liability limits of $25,000. This sum is rarely enough to cover the harm from even a minor automobile accident. An emergency room visit where everything checks out ok, but xrays and ct scans are taken to rule out a more serious injury can easily cost in excess of $10,000. So, if the injured person requires any follow-up care at all, the amount of medical expenses alone can quickly approach that $25,000 number. A more serious accident with a hospitalization or surgery will almost certainly result in a hospital bill in excess of the $25,000 and often approaches a six-figure bill. Having $25,000 in liability insurance coverage will not sufficiently protect your assets. Frankly, having even $100,000 in insurance coverage will not sufficently protect your assets. We highly recommend having limits in excess of $100,000 when possible.
Another important line item to pay attention to on your automobile insurance policy is uninsured/underinsured motorist coverage. This coverage protects you and your family if one of you are injured in an auto accident and the person that hits you does not have insurance or does not have enough insurance to cover your injuries. Your insurance company must offer you UM/UIM coverage, but you have the option to decline the coverage, and sometimes folks decline it to get a better rate without really understanding how important that coverage could be for their family. Remember, the state minimum limits are only $25,000 so the person that hits you may only have that amount of coverage, or none at all.
If you have an umbrella policy, then that policy provides additional liability coverage for you over and above your regular liability policy limits. The typical umbrella policy, however, is a liability only policy. So it protects you when you are sued, but it does not provide any coverage for your own family's injuries if you are hit by someone without insurance. You can, however, buy an umbrella policy that will provide uninsured/underinsured motorist coverage, and so all those extra insurance dollars would be available to you and your family if you are injured by someone without insurance. If you are paying for an umbrella policy anyway, why not have one that protects you and your family from being sued AND provides benefits if you are hurt?
These are just a few examples of why it is important to have detailed conversations with your insurance agent about your coverage and to really weigh options to make sure you are getting the best value for your premium. We are not insurance agents, but we have years of experience guiding clients through injury claims.
Public Chapter 570 (HB0774/SB0326)
The Revised Uniform Fiduciary Access to Digital Assets Act (“Revised UFADAA”) became law in the state of Tennessee as of July 1, 2016. This Act allows account holders who reside in the state of Tennessee or resided in Tennessee at the time of their death to plan for the ultimate disposition of their digital property. The Revised UFADAA also provides a means for fiduciaries (which include personal representatives acting for a decedent, agents acting under a power of attorney or a will, conservators, guardians, and trustees) to access, manage, protect, and distribute digital assets of an account holder. The Revised UFADAA, however, does not apply to the digital assets of an employer used by an employee.
Under the Revised UFADAA, an account holder may direct an online service provider through an online tool offered by the provider or through a will, trust, power of attorney, or other instrument to disclose or not to disclose some or all of the user’s digital assets, including the content of electronic communications, to a fiduciary. In the event the account holder has not provided direction regarding the disclosure of digital assets, the online provider’s terms-of-service will control, and to the extent the terms-of-service are silent, the default rules set forth in the Revised UFADAA will apply. In addition, a court may direct disclosure of an account holder’s digital assets to a fiduciary.
Online service providers must comply with a request made pursuant to the Revised UFADAA within 60 days after receipt of the information required for the request. The online service provider may comply with a request for the disclosure of digital assets by either allowing the fiduciary full access to the account holder’s account (or partial access to perform a specific task) or by providing a copy of all digital assets that the account holder could have accessed on the date of the request. As for electronic communications (i.e., email, text messages and social media), if certain conditions are met, an online service provider need only disclose a catalogue of electronic communications and is not required to disclose the content of these communications unless a deceased account holder specifically consented to such a disclosure or a court directs disclosure of the content.
Of course, a fiduciary continues to owe duties of care, loyalty, and confidentiality when managing digital assets.
The Revised UFADAA provides a means for fiduciaries to gain access to an account holder’s digital assets to obtain information necessary to manage the account holder’s affairs and preserve the value of their digital assets while abiding by the account holder’s wishes and maintaining their privacy rights, which prior to the passage of this Act was often very difficult to accomplish. The Revised UFADAA will likely result in more efficient administration of estates of decedents and more efficient management of assets of a minor or person with a disability.
Public Chapter 640 (HB 1700/SB1810)
Effective Date 3/23/2016
The Tennessee Legislature recently passed legislation providing that the court now has discretion to waive the requirement that a fiduciary request court approval for a change in the nature of any investment described in a property management plan. See Tenn. Code Ann. § 34-1-115(f). The court may approve a request for such a waiver at a hearing as long as all of the respondent’s heirs at law or beneficiaries had notice of the hearing and an opportunity to be heard regarding the proposed waiver and change of the nature of the investments.
In deciding on whether a waiver should be granted, the Court may consider a number of factors, including the fiduciary’s history as a conservator, the length of the conservatorship, the number of years the fiduciary has acted as a conservator, and any other factors the court deems proper. In addition, the court may require the conservator to obtain professional advice or assistance regarding the investment of excess funds.
If a waiver is approved by the Court, the fiduciary must maintain a minimum balance of funds sufficient to cover the anticipated costs of care of the ward for a minimum of three (3) years and must include in all required accountings a detailed outline of the investments made on behalf of the ward and the current status of those investments.
This legislation also provides that fiduciaries may now invest a ward’s funds in income-producing commercial and residential property in addition to the list of approved investments set forth in Tennessee Code Annotated §§ 35-3-103 – 35-3-11. See Tenn. Code Ann. § 35-3-102.
Public Chapter 809 (HB2172/SB2254)
Effective Date 4/14/2016
The Tennessee General Assembly recently amended several provisions of Titles 30 and 35 of Tennessee Code Annotated dealing with the administration of estates. First, the amendment allows waivers of otherwise required accountings filed by the distributees of the residue of an estate, which in the past had to be filed with a sworn statement of the distributees, now to be executed with either a sworn statement or with a statement under penalty of perjury. Tenn. Code Ann. § 30-2-601(a)(4)(B). Likewise, the amendment also provides that an executor named in a decedent’s last will and testament may decline to serve as a personal representative by filing a sworn statement or a statement under penalty and perjury with the court. Tenn. Code Ann. § 30-1-112(a). In addition, in light of the fact that no tax is imposed on the estates of decedents dying in 2016 or thereafter, a receipt from the department of revenue is no longer required to be filed for estates where the decedent’s death occurred on January 1, 2016 or later. Tenn. Code Ann. § 30-2-601(b)(1).
Public Chapter 843 (HB1472/SB1560)
Effective Date 4/19/2016
The Tennessee General Assembly recently amended Tenn. Code Ann. § 32-1-104 to rectify the result of In re Chastain , 401 S.W.3d 612 (Tenn. 2012) as to the signatures of attesting witnesses to a will. In Chastain , the Tennessee Supreme Court held that where the decedent failed to sign his will but signed an affidavit of attesting witnesses, the statutory requirement that the testator’s signature be on the will was not met; thus, the will was not valid.
Although this amendment does not change the requirement that a testator must sign his or her will in order for it to be valid, it provides that for wills executed before July 1, 2016, a witness signature on an affidavit is considered a witness signature on the will for purposes of determining the will’s validity as long as certain statutory requirements are met. Specifically, the affidavit signed by the witness must meet the requirements set forth in Tenn. Code Ann. § 32-2-110 for self-proving affidavits, the witness signature must have been made at the same time that the testator signed the will, and the witness signature must meet the requirements for attesting witness signatures set forth in Tenn. Code Ann. § 32-1-104(a). Further, the amendment provides that if the witness signed the affidavit on the same date that the testator signed the will, it is presumed that the witness and the testator signed at the same time, unless rebutted by clear and convincing evidence. Finally, if the witness signature on an affidavit is used for the purpose of determining the validity of a will, the affidavit signed by the witness will no longer serve as a self-proving affidavit.
Public Chapter 1062 (HB2030/SB2190)
Effective Date 5/16/2016
The Tennessee General Assembly recently passed legislation clarifying that the right to communicate, visit, or interact with other persons, including the right to receive visitors, telephone calls, or personal mail, are among the rights that can be removed from a ward and transferred to a guardian or conservator. Tenn. Code Ann. § 34-3-107(a)(2)(P). However, certain persons, including any person designated to be conservator in a writing signed by the person with a disability and/or the spouse, child, or closest relatives of the person with a disability, may petition the court to require the conservator to grant the petitioner the right to communicate with the ward through visits, telephone calls, or personal mail. Tenn. Code Ann. § 34-3-108(f). The prevailing party on such a petition is entitled to court costs and reasonable attorney fees. Id. Finally, if a ward is unable to express consent to communication, visitation or interaction with a person as a result of a physical or mental condition, the ward’s consent may be presumed based on the ward’s prior relationship history with the person seeking to communicate, visit, or otherwise interact with the ward. Tenn. Code Ann. § 34-3-107(c).
Public Chapter 804 (HB1894/SB1972)
Effective Date 4/14/2016
The Tennessee Legislature has increased the amount that financial institutions can pay out without formal probate proceedings or small estate proceedings. Financial institutions and associations may now pay out all accounts of certain deceased and checks payable to certain decedents or their estates, creditors, relatives, and representatives as long as the sums do not exceed $10,000.00 in the aggregate. In addition, the maximum amount life insurance companies can pay out with minimal documentation has been increased from $7,500 to $15,000. Where the life insurance proceeds to be paid out equal $15,000 or less, a photocopy of a certificate of death along with certain statements is all that is required to show proof of death.