Bielski Law Office, Ltd.

Attorney Disqualification and Estate Administration

When an attorney has a conflict of interest in a case the attorney is not allowed to be involved in the case. A bizarre case in Louisiana illustrates how that principle applies to estate administration.

There is apparently no dispute that Kaci Breen shot her husband, Wayne, in the chest twice. Whether that makes Kaci guilty of murder is the subject of an ongoing sheriff's investigation.

Five days after shooting her husband, Kaci filed a petition with the probate court to have an attorney appointed to find her husband's latest will. Attached to the motion was an older will that named Kaci as the executor of the estate.

Of course, it should go without saying that if Kaci is convicted of murder, she cannot have anything to do with her husband's estate.

A few days later another attorney, representing the grown children, filed a motion to have Kaci's attorney removed from the case due to a conflict of interest.

Why?

It turns out that her attorney’s firm has a close relationship with the very sheriff's department that is investigating the possible murder. Kaci's attorney submitted a long response in opposition, but did withdraw from the case.

Intrigued?

The New Orleans Advocate has more to read on the story in an article titled "Legal battle begins over slain doctor's estate."

Obviously, a lot is going on in this estate case and it is far too early to speculate on how the estate will eventually be divided. The key point right now is that an attorney can be removed from an estate case if that attorney has a conflict of interest.

Here the conflict arose because the firm representing Kaci had an ongoing legal relationship with the same sheriff's department investigating potential murder charges against her, and the results of that investigation will have a dramatic impact on the estate.

Reference:  New Orleans Advocate (March 19, 2015) "Legal battle begins over slain doctor's estate."

The Estate Tax and Your Non-U.S. Citizen Spouse

If you are married to a non-U.S. citizen, you need to know that the estate tax options for your spouse will be different if you pass away than if you were married to a U.S. citizen. This knowledge will help you to protect your spouse from the most devastating effects of the estate tax.

When a surviving spouse is a U.S. citizen, he or she does not have to pay the estate tax immediately.  Instead, the tax can wait until the surviving spouse passes away. However, the same does not hold true if a surviving spouse is not a U.S. citizen.

In that case, the IRS expects to receive the full amount of the estate tax right away.

Obviously, this can have devastating effects on the non-U.S. citizen spouse.

Recently, Life Health Pro offered suggestions on how to help alleviate this estate tax problem in an article titled "2 ways to help protect non-U.S. spouses from estate tax liability."

The first suggestion is to create a Qualified Domestic Trust, known as a "QDOT." This trust allows your spouse to defer the estate tax until his or her own death. Your spouse can receive the income from the trust.

However, your spouse will not be able to receive any principle from the trust except in cases of emergency or hardship. Another downside is that any assets from the trust cannot be transferred outside of the United States.

The other suggestion offered is to purchase a life insurance policy in the amount of the anticipated estate tax. This will make sure your spouse has the money on hand to pay the tax.

If you have questions about these options, contact an estate planning attorney who has experience working with international couples.

Estate Planning to Prevent Identity Theft

By now most people are aware of the necessity to exercise diligence to prevent identity theft. People know to check their credit statements and how to look out for irregularities. However, when you pass away, you can no longer do that. Identity thieves are now exploiting this to steal the identities of the recently deceased.

Protecting against identity theft is a tedious, but not entirely complex process. You need to monitor your bank statements, credit card statements and your credit rating to make sure that someone else is not using your name and social security number to assume your identity.

When you pass away, for a time, there might not be anyone who is doing that for you. In fact, it might be some months before the necessary entities know that you have passed away.

In the case of the Social Security Administration, they might not know that you have passed away for years.

As recently reported in the Huffington Post, this has led to a new phenomenon of identity thieves specifically targeting the recently deceased. The article is titled "The New Grave Robbers: Identity Thieves."

As the article explains, you need to make protection against identity thieves a part of your estate plan. The single best way to do this is to include a check list for your executor or personal representative about what needs to be monitored and what entities need to be notified of your death.

Doing this can spare your estate a lot of problems.

If you have been a victim of identity theft, you know how difficult it can be to set things right while you are alive. It is even more difficult for an estate administrator to do.

Contact an experienced estate planning attorney. He or she can help you think through all of these contingencies.

Reference: Huffington Post (March 19, 2015) "The New Grave Robbers: Identity Thieves."