Supplement to Wills, Trusts and Estate Administration

6th EditionDennis Hower and Peter T.Kahn

ISBN-10 1-4180-3933-0

Dr. Richard Patete, J.D.Keiser University-Sarasota

CampusCopyright 2007

Chapter OneThe Estate Plan and the Purpose

and Need for a Will

The Estate Plan An arrangement of a person’s estate

using the laws of various disciplines (wills, trusts, taxes, Insurance, and property) to gain maximum financial benefit of all the laws for the disposition of a person’s assets.

During life (inter vivos) and after death

Will

The legally enforceable written declaration of a person’s intended distribution of property after death

Usually written

Will Requirements

Capacity Legal Capacity-

Age at which a person acquires capacity to a valid will, usually 18

Testamentary capacity Sanity required for a person to make a

will Sound mind

Vocabulary

Testator Male who makes or dies with a valid

will

Testatrix Female who makes or dies with a

valid will

Requirements

Writing Witnesses Signed by Testator/trix Sound mind Capacity

Probate

A court-supervised administration of a decedent’s estate

Decendent- the person who has died

Terminology - Wills Beneficiary

A person entitled to receive property under a will

Devisee A person who receives a gift of real property

under a will Legatee

A person who receives a gift of personal property under a will

Terminology - Intestate

Intestate A person dies without a valid will or a

will Heir

A person who receives a gift of real property from an intestate

Next of Kin Closest blood relative of the decedent

Terminology Ambulatory

Subject to change Codicil

A written amendment to a will Letter of Instruction

A document that specifies the testator’s intentions but does not formally amend or change the will

Residuary Estate

The remaining assets of the decedent’s estate after all debts have been paid and all other gifts in the will distributed

Property Distributions

Tenancy in Common Joint Tenancy Tenant by Entireties

Structure of the Estate

Estate

Beneficiary

Testator

PersonalRepresentative

Letter of Instruction

Trusts

A third party instrument made during life which is effective either at death or during life

Testamentary Trust A trust that is effective death

Inter vivos trust- a trust that is effective during life

Structure of a Trust

Trust EstateOr Corpus

Beneficiary

Trustee

Settlor

Inter vivos gifts

Title

Legal Title Right to ownership by name

Equitable Title Right to control the asset and

manage the property for the benefit of another

Trustee

Name of person or office that infers a person of trust

Named by the testator to carry out their wishes in a trust

Compare to Executor/personal represenative who carries out wishes in will

Personal Representative Person who administers and

distributes decedent’s estate either intestate or testate

Compare to Executor/trix who carries out the provisions of the will

Administrator/trix – person appointed to carry out and distribute the decedent’s estate when they die without a will

Will Substitutes

Joint Tenancy Life Insurance Inter vivos trust Inter vivos gift Community Property agreement Pay on Death instruments – deeds

or bank accounts

Chapter TwoThe Concept of Property Related to

Wills, Trusts and Estates

Real Property Immovable, fixed or permanent E.g. Land, trees, etc.

Personal Property Movable E.g. Cars, boats, furniture

Real Property

Realty or Real Estate Immovable Affixed to land or buildings Growing on the land

“Fixture”something so attached to the land as to be deemed a part of it.

Transfer

Deed A writing, signed by the grantor

conveying title to real property to grantee.

Grantor person who conveys to another

Grantee Person to whom real property is conveyed

Personal Property

Chattel Movable Tangible

Property that has a physical existence and can be touched

Eg. Boat, car

Intangible Property that has no physical existence

Eg. Check, IOU or Copyright

Estate

All property owned by a person while alive or at the time of death. Probate Property

Property subject estate administration Non-probate property

Transferred without estate administration By operation of law, eg. Life insurance

benefits

Forms of property ownership Tenants in Severalty Concurrent Ownership

Joint Tenancy Tenants in common Tenants in entirety Community Property

N.B. Can be used as a will substitute

Tenants in Severalty

Ownership by one person Probate Property

Joint Tenancy

Ownership by two or more Right of survivorship

Ownership passes by operation of law without probate

Unities of time, title, interest and possession

Undivided ownership interest

Tenants in Common

Unities of Time, Title and interest But NOT Possession

Each owner controls their interest and establishes a right to take or control the whole property and share in profits

Partition

A remedy for a division of real property held by joint tenants or tenants in common so that the individuals can hold title in severalty.

Tenants by Entirety

A form of joint tenancy available only to husband and wife

Right of survivorship Added bonus, creditors of

individual may not seize property of the tenancy because the entirety is considered as one entity

Community Property

All property, other than property received by gift, will, or inheritance, acquired by either spouse during the marriage

Considered to be owned by both spouses equally

Adopted by nine states – Opt in -Alaska

Separate Property

Property owned by the husband or wife prior to their marriage

OR acquired during the marriage by

gift, will or inheritance

Estates in Real Property Freehold

An estate in real property of uncertain duration, eg., life estate

Fee Simple Largest and best and most extensive estate

possible Life Estate

An estate held by a person during his or someone else’s life

Life Estate

Life Tenant Pur Autre vie-measured by the life

of another Future interest-what is reserved to

the grantor Reversion-returns to the grantor Remainder-goes to another person

Spouses right to election

Statutory right granted by law giving the surviving spouse the choice To take against the will

or

That provided by statute

Waste

Legal concept that allows an owner to recover for permanent damage to real property

Any act or omission that changes the character or value of the property.

Leasehold Estate

Tenancy at will Tenancy at sufferance Tenancy for month/years

Lasts for a fixed period of time

Generally, these are tenancies operated under the terms of a lease.

Chapter ThreeThe Participants and the Proper

Court

Personal Representative Attorney Paralegal Probate Court Registrar Clerk or Court Administrator

Personal Representative

Person or corporate institution that administers the estate of a decedent

A position of trust and loyalty Fiduciary duty

Act in good faith

Estate Administration Duties

Letters Testamentary

Letters of Administration

Bond or Surety

Attorney

Works for a represents the Estate Does not represent the heirs or

beneficiaries Acts as legal advisor to estate

Paralegal

Acts under the direction and supervision of the attorney Drafting of documents Data collection Client contact Cannot give legal advice Follows upon procedural issues

Probate Court

Jurisdiction Insures executor properly

administers estate by: Creditors with proper claims get paid Pay taxes Gifts to heirs or beneficiary are paid

Probate

Procedure by which a document is presented to a court to confirm it is a valid will

Court may oversee distribution and payment

Probate Proceedings

Process of distribution of the estates assets and liabilities

Will Contest

Litigation challenging the validity of a will

Jurisdiction

The authority of a court to decide a certain kind of case and having the authority to enforce it

E.g. Will contests and probate are in decided and handled by courts of general jurisdiction

Compare to “Venue”

Venue

The particular place where a court having authority may hear and decide a case

Domicile

The state in which the decedent intended to call home

Compare with residence

Residence

A temporary place of dwelling

Types of Jurisdiction

In rem Jurisdiction over the property

In personam Jurisdiction over the person

Ancillary jurisdiction

Additional jurisdiction over other items of the estate which is used to make a complete disposition of assets

Often times in other states E.g. property owned outside of the

domicile of the decedent

Chapter FourThe Law of Succession:

Testate vs. Intestate

Testacy Death with a valid will

Intestacy Death without a valid will

Holographic Wills

A will written in the testator’s own hand

May or may not be valid in your state

Validity varies from state to state-check the state statutes

Nuncupative

An oral will Spoken in the presence of

witnesses Generally not valid except in

extreme circumstances

Statutory Will

A fill-in-the-blank will created and authorized by state statute

Joint or reciprocal will

Usually between husband and wife Made at same time and name each

other as mutual beneficiary. Check validity of joint will for each

state

Living Will

A document separate from a will that expresses a person’s wish to be allowed to stay alive or to die by natural consequences

Not really a will disposing of assets but more of directive

Types of Gifts in a Will

Specific bequest or legacy Gift of a particular item or class of

personal property

Specific Devise A gift of real property

Legacy

Demonstrative A gift of a specific monetary amount

from a particular item or sale of item E.g. $10,000 from sale of house

General A gift of a fixed amount of money

from the general assets of the estate E.g. I give the sum of $10,000 to …

Residuary

A gift, either by legacy or devise, of all of the testator’s property not otherwise disposed of specifically

What happens when the gift is not present at time of death? Ademption

An intentional act by testator, while alive, to cancel or revoke the gift or to deliver the gift to another or to the beneficiary

Lapse Failure to distribute a in the will because the

beneficiary dies before the testator Abatement

The process that determines the order in which made by testator shall be applied to pay the decedent’s taxes, creditors and expenses

Intestacy

Death without a valid will Distribution is made by state

statute Kindred-persons related to one

another by blood, a/k/a, next of kin Consanguinity-persons related by

blood through a common ancestor

Descendants

A claimant related to the decedent through a lineal or collateral blood line

See chart on page 106-8 Exhibits 4.5, 4.6 and 4.7

Per Capita Distribution Division of intestate estate “by the heads” Distribution without benefit of right of

representation Right of a child to receive if the parent or was

still alive Distribution by the number of heads alive

See examples pages 109-10

Per Stirpes

Distribution based upon the relationship of those entitled to the estate Distribution by way of a class or

group and not by heads or individuals

Example page 111

Escheat

The passage of an intestate’s property to the state when there are no surviving blood relatives or spouses

Rights of Survivors

Surviving spouses Right of election

Spouse’s choice of statutory share or gift under the will

Forced share Statute that authorizes the spouse to

make the choice

Divorce If granted after execution of the will,

gift determined by state law Generally, divorce revokes the gift

to the former spouse and not the will itself

Gifts to former spouse usually pass to residuary beneficiary

Legal separation does not change former spouse status

Marriage

Subsequent marriage may revoke entire will-state by state analysis

Compare joint tenancy created prior to marriage

Premarital agreements

Contracts between man and woman before their marriage where property rights are usually predetermined

Occurs usually in second marriages to protect children of first marriage and to protect second spouse

Compare post-marital agreement

Children Natural children are treated the same

as adopted children Nonmarital children

May inherit from non married parents but governed on a state by state basis

Pretermitted children Omitted child in a will Look to statute to determine affect of whether

intentional or not Parents can intentionally disherit children; unlike

disheriting a spouse

Chapter FiveWills: Validation Requirements, Modification, Revocation, and

Contests

Requirements Testamentary Intent Capacity Writing Signed by Testator/trix Witness

Testamentary Intent

Testator must intend instrument to operate as his/her last will

Usually expressed in the document

Capacity

Sound mind Natural objects of the testator’s

bounty Cannot have insane delusions Lucid intervals

Temporary restoration of sanity Permissible to make valid will, e.g.

dementia

Writing

Must be hand written or typed Most oral wills are not valid

Signature

Must be signed by its maker Can be signed by a mark Intent to sign and make will

Witnesses

Attest to the testator’s signature Attest to intent to be bound Are capable and competent to act Disinterested Publication that it is testator’s will

Codicil

An amendment to the Will Codicil vs. Will Codicil must have same

requirements as a Will Changes the terms of the Will

Revocation of Will Ambulatory

Revocable and subject to change Ambulatory until death

Revocation by Acttears, burns, cancel, cross out, destroy

Must have intent to revoke

Operation of Law Rights that pass by rules of law

without act or knowledge For example

Marriage Divorce

Can revoke all or part of will or its provisions

Subsequent writing

New will Codicil

Both can revoke or change the terms of a will

Will Contests If will is invalid, then distribute

assets through intestacy laws Grounds

Not properly executed No notice Requirements not adhered to Capacity revocation

In terrorem clause

A clause in a will that if a beneficiary of the will objects to probate or challenges the will and its distributions, contestand forfeits all benefits of the will

Chapter SixPreparation to draft a will

Information gathering Intent of the client Family data Estate planning Assets, liabilities How are assets titled Real vs. Personal property

Preparation – cont’d

Insurance Inter vivos documents or

agreements Taxes Children and heirs are to be

identified Conditions to gifts: Precedent or

subsequent

Chapter SevenFinal Draft and Execution

Contents of a Standard Will Introduction or Exordium or

Publication General Revocation Clause Payment of debts and expenses Instructions for final burial Specific gifts Residuary Clause

Contents – cont’d

Standard Provisions Appoint personal representative Appoint guardian Simultaneous death Testamentary trust Testimonium clause Signature of Testator

Contents – cont’d

Standard Provisions Attestation of witnesses

Options Self-proving provisions Letter of instruction Power of Attorney Living Will Medical Power of attorney

Chapter EightIntroduction to Trusts

Terminology Trust Settlor Trustee Legal title Equitable Title Beneficiary Trust Property/Corpus Trust Instrument

Creation of a Trust

Trust

A property arrangement in which real or personal property is transferred from the settlor to one or more trustees who hold legal title to the property for the benefit of one or more beneficiaries who hold equitable title

Settlor

The creator of a trust. The gift giver or donor

Trustee

A person of trust who holds property in trust for the benefit of one or more beneficiaries.

A fiduciary (trusted person) who is required to perform all trust duties according to the term of the trust instrument and law with loyalty, honesty and good faith

Legal Title

A form of ownership giving the trustee the right to control and manage the property for another’s benefit

Equitable Title

The right of the party who holds the equitable title or beneficial interest to the benefits of the trust.

Beneficiary

A person who has the enjoyment and benefit of the property of the trust. The right to receive the benefits of the trust

Trust Property/Corpus

The real or personal property of the trust that the trustee holds and was given or donated by the settlor

Trust Instrument

The written instrument that sets forth the creation of the trust, the terms of the trust and the rights, duties and obligations of the trustee and beneficiary

Types of trusts

Revocable Settlor has the right to revoke or

change the terms of the trust prior to death

Irrevocable Once created, it cannot be revoked or

changed by the settlor

Essential Elements of a Trust A settlor who creates the trust One or more trustees who

administer and manage the trust One or more beneficiaries who

receive the benefits of the trust and who enforce the trust

Real or personal property that must be transferred to the trust

Removal or Resignation of Trustee

Voluntary Resignation Lack of Capacity Serious breach of trust Refusal to post bond Refusal to give accounting Crime of dishonesty Absence from state-prolonged Unreasonable failure to cooperate

Powers of Trustee Delineated in trust agreement State statutes E.G.

Sell assets Lease property Carry on business Lend or borrow money Hire professionals

Duties of Trustee

Duty of performance and due care Duty of loyalty Duty to preserve and possess corpus Duty to invest corpus Duty to make payments of income

and principal to beneficiaries Account to profits and losses

Liability of Trustee

Breach of trust (legal/equitable) Removal Breach of any prior duties Recover assets Investment policy method is improper Compel to perform duty Loyalty to beneficiary

Cost of Trustee

Usually a percentage of the assets under management

May be waived for family members Can be regulated by statute

Beneficiary

Equitable interest in the corpus No right to direct distributions or

investment Can enforce terms of trust May be individuals or class of

people

Corpus

Property of the trust Gift from grantor or settlor Corpus, res, trust property Real and/or personal property

Termination of trust

Completion of the trust purpose Revocation by settlor Merger of interests

(legal/equitable) Upon request of beneficiary when

there is no express purpose that requires continuation of trust

Chapter 9Classification of Trusts

Express Created for explicit terms or purpose

Implied Created by operation of law based

upon implied intent

Express Trusts Private

Settlor intends to create a trust Trustee named Beneficiary named Transfer of property

Public Same elements as private trust, except that a

social benefit or charitable purpose is set forth and there is an indefinite class of beneficiaries

Cypress Doctrine

An equity court may order a gift intended for a charity that is now nonexistent be given a purpose to another charity that is near or closely related to the original charitable purpose of the settlor

Active vs. Passive

Active Trustee active manages trust

Passive No active duties

Inter vivos trust

Created during the life of the settlor

Can be public or private

Testamentary Trust

Created at time of death or becomes effective upon execution of will

Rule against Perpetuities

Fixes a time period within a future interest must vest

Rule: no interest is valid unless itvests, if at all, not later than 21 years, plus the gestation period, after some life or being at the time of creation

Implied Trusts Resulting

Created by operation of law from circumstances implied from the intentions of the parties. Can be a remedy to litigation

Constructive Involuntary trust created by operation of

law to recover property from a person who obtained possession or legal rights illegally or improperly

Miscellaneous trusts Spendthrift

Created for beneficiaries who are financially irresponsible

Totten Pay on death

Sprinkling Trustee has authority and discretion to

accumulate or distribute income, principal or both among beneficiaries in varying amounts

Revocable Living Trusts Same conditions apply as for trusts in

general Can be an advantage over a will and can

be considered a will substitute since it avoid probate

Reduce cost of estate administration Avoids publicity No court supervision Tax savings Allows settlor to manage or dictate

assets and distributions after death

Disadvantages of Living trust

Costly to create Settlor must transfer assets into

trust and give up control during life

Pour Over Will

A will provision in which the testator directs the residue of the estate into an existing living trust

Irrevocable Trusts

Cannot be changed or the corpus returned after gifted

Terms may be changed during settlors life, but trust continues

Trust Administration Pre-death

Manage trust property

Preserve and maintain corpus

File tax returns

Post-death Obtain EIN Notice to beneficiary Open account Transfer funds Collect, preserve and

value corpus Pay creditor claims File tax returns Distribute income or

principal to beneficiary

Chapter 10Estate Planning

Considerations Client data Federal and state gift and estate

taxes Estate administration expenses Forced liquidation Termination of employment

Documentation Wills Trusts Power of Attorney Living Will Life Insurance

Periodic review is recommended in the event of a change in life circumstances

Tax considerations

Marital Deduction Unlimited amount of the decedent’s

gross estate which may be given to the surviving spouse without being subject to taxes being levied against the estate

Bypass Trusts Often called A-B trust, credit shelter

trust, residuary trust or family trust A portion of the deceased spouse’s

estate passes to a trust rather than directly to surviving spouse

Reduces the surviving spouses trust Usually surviving spouse is given a

life estate in the trust

Charitable Trusts

Tax laws allow a deduction form the estate for this gift, thus reducing the taxable amount of the estate

Tax savings that reduce the Gross estate

Gifts made during donor’s life Powers of Appointment Trusts that qualify for marital

deduction Life insurance

Power of Appointment

Created in a will or trust that gives a person the authority or “power” to select the nominee of the gift

QTIP

Trust that will qualify for the marital deduction in which the surviving spouse receives all of the income for life but is not given a general power of appointment

Life Insurance Whole Life

Pays contract amount on death Builds a cash value during life

Term Life Pays contract amount on death Builds no cash value during life Ends at a specific age

Universal life Combination of Whole and Term

N.B. All policy payments pass outside of the estate and are not subject to probate or estate administration

Life Insurance Trusts A trust created that cannot be revoked

or amended which is established by a settlor who assigns the ownership of a new or existing life insurance policy on the settlor’s life

Settlor contributes money annually to the trust to pay the premiums

Policy proceeds are payable to the trust on the death of the settlor

Postmortem Estate Planning

Estate planning the occurs after the death of the testator/settlor

E.G.- Disclaimer Allows a beneficiary or heir to refuse

a gift by will, trust or inheritance without any adverse tax consequences

N.B. Results in a tax savings

Chapter 11Long-Term Care

Long-term care The support people need when they

can no longer care for themselves because of infirmity, frailty, disability or a lingering illness

Resources to pay for long-term care

Social Security SSI Medicaid Medicare Insurance Personal assets

Chapter 12Personal Representative: Types, Duties,

Pre-probate Duties and Appointment

Personal Representative Anyone empowered or authorized to

administer the estate of the deceased, whether the deceased died testate or intestate

Pre-Probate Duties

Search for Will and personal or business records

Notification of death to others Obtain death certificate Family conference Being appointed Bond

Probating (Proving) Will

Witnesses present at time of will signing

Testator declaration of intent to sign will

Testator did sign will Testator over the age of 18

Letters of Authority

Letters Testamentary Authority granted to PR when there

is a will Letters of Administration

Authority granted to PR when there is no will and/or testator died intestate

Chapter 13Probate and Estate

Administration

Probate

The act or process of proving the validity of the will

Estate Administration Procedures and duties of

the PR which include the collection and inventory of assets, payment of approved claims and taxes, final distribution of the assets to the beneficiary and heirs entitled to receive

Small Estate Settlement and Administration Small Estate

Estate with few or limited monetary value The amount varies by state Amount set by statute Avoid the lengthy and costly probate process Collection by affidavit – an alternative

abbreviated process Title and possession of personal property is

transferred w/o need of third parties from estate to beneficiaries or heirs

Summary Administration

Applies to smaller estates that do not exceed the maximum limit set by statute

Is an abbreviated probate process Shorter and simpler than regular

estate administration

Family Settlement Agreement

Private written agreement among heirs or beneficiaries unanimously agreeing on the distribution of the estate without supervision by the court

Commencing Probate and Estate Administration

Petition for probate of will Petition for administration Publication of proceedings Notice of rights of beneficiaries Pay funeral expenses Miscellaneous duties before

hearing

Probate and Estate Administration-cont’d Hearing to prove will Selection of PR Admit will-grant administration Issue Letters

Testamentary/Administration EIN Open Estate checking account Notice to Creditors Appoint guardians or trustees Admit foreign will to probate

Procedures before Estate Distribution Open safe deposit box Collect and preserve assets Prepare inventory

Detailed list of property, description and value at time or death

Prepare appraisal Market based evaluation of property

Prepare schedule of non-probate assets File inventory and appraisal

Distribution of Estate; Payment of Claims

Distribute family allowances or exempt property to spouse and/or minor children

Attend hearing on creditor’s claims and pay approved or allowed claims

Transfer of assets

Note to Editor

Final Account and Closing the Estate File Final Account; Petition for

Settlement and Distribution Give notice of hearing for Final

account and distribution Prepare and file federal and state

income taxes with final account Request order approving of final

accounting

Final Account and Closing the Estate-cont’d

Granting of final account and distribution by the court

Collect receipts for distribution of assets to beneficiary/heir

Petition for Discharge of PR Cancel PR bond

PR Liability

The PR who acts reasonably and in good faith faces no personal liability

Stray from this general rule or violate fiduciary duty, PR may be personally liable

Chapter 14Informal Probate Administration

Generally reduces the time required to complete the administration of the estate

Fewer steps and less complicated proceedings

Allows for easy distribution, since there is no notice requirements or court approval required

Application for Informal Probate Appointment of PR Apply for Informal Probate Acceptance by Registrar of Wills

Meet all requirements Affirmed statements Applicant is interested person Proper venue 120 hours since decedent’s death Those demanding notice received it

Duties and Powers of Personal Representative Proper distribution of estate assets

according to will Notice to interested persons Payment of creditor claims Inventory Property Hold and manage assets Final accounting Close the estate

Chapter 15Tax Consideration in the Administration of Estates

Income Tax Levy of tax on income

Death Tax Levy of tax on property transferred

at death Gift Tax

Levy of tax on property transferred during life

Unified Credit

A credit against the federal unified transfer tax on gifts and estates

The credit is subtracted from the tax due

See Exhibits 15.2 and 15.3

Marital Deduction

A testator’s estate is entitled to the marital deduction for transfer between spouses if there is a surviving spouse and if the decedent leaves all or a portion of the estate to the surviving spouse

Uniform Transfers to Minors Act

Allows any kind of real or personal property to be transferred to a custodianship as a gift to a minor

Gift is irrevocable

Generation Skipping Transfers

A transfer of assets to a person two or more generations below the transferor

E.g., from grandparent to grandchild

Trust-generation skipping

A trust the partially avoids the federal gift and estate tax on property to a beneficiary two or more generations below transferor

Tax: federal when the value exceeds the lifetime exemption Currently $2M

Tax Returns PR responsibility

Federal Income State Income Federal Fiduciary Income State Fiduciary Income Federal Gift State Gift Federal Estate Tax (generation skipping) State Estate Tax State Inheritance Tax

Gross Estate

All assets owned by the decedent at death and the value of any interest held in property, less liabilities owed on that property

Valuation is a date of death valuation

Taxable Estate After a determination of the gross estate,

then deductions and exemptions are applied to determine the taxable estate Expenses, liens, debts, taxes Losses during the estate Marital deduction Charitable deductions State Death tax Credit amounts, such as unified credit

Chapter 16Ethical Principles

Standards and Guidelines that apply to the legal profession

Written and published by various organizations ABA-American Bar Association

Model Rules of Professional Responsibility Model Code of Professional Responsibility

Ethics

At the national level, the Rules and Codes are recommendations that may be adopted by the states Opinions are issued interpreting the

Rules and Code giving further clarification

Cannons

General rules or principles that establish behavior and professional responsibility

Disciplinary Rules

Minimum professional conduct that if violated may lead to disciplinary action against an attorney

Attorneys and Paralegals

Many states make the attorney liable for that actions of the paralegal

Done by Rules or Codes of disciplinary conduct

Some Organizations and States regulate or make recommendations for the regulation of paralegals

Professional Standards for Paralegals

American Association of Paralegal Education

National Federation of Paralegal Associations

National Association of Legal Assistants

Unauthorized Practice of Law

To engage in legal work that involves exercising professional judgment or advice usually reserved for an attorney.

Can be a misrepresentation of the persons status Penalty: Disciplinary conduct, civil

liability or criminal sanctions

Privileges Attorney-client

A rule that confidential communication in the course of the professional employment between the attorney and client may be divulged or compelled to divulge by the attorney without the client’s consent

Compare: Work Product Privilege: work of an attorney for a client that includes private memo in anticipation of trial or litigation does not have to be divulged

The End

Supplement to Wills, Trusts and Estate

Administration6th Edition

Dennis Hower and Peter T.KahnISBN-10 1-4180-3933-0