Monthly Archives: October 2011

Contesting a Will? Consider the costs.

One of my axioms, “money changes people” continues to be validated over and over again with the rise of estate litigation. Not that injustice shouldn’t be corrected or wrong-doers unpunished; but oft-times will contests are simply a matter of sour grapes.

Contesting a will it is usually a civil court matter; meaning that the plaintiff (the one bringing a complaint) must file suit against the executor of the will in Chancery Court. Unfortunately we’re also seeing a rise in criminal cases where elder abuse has been the issue, but that’s another matter entirely. In an article for AARP.org, Nancy Mann Jackson writes that when contesting a will, “the chances of success are slim.” She outlines four legal challenges that may provide an opportunity for successfully contesting a will.

  • Undue influence. It’s difficult to prove, but if the deceased person was pressured extensively by someone to change the will, you have a case.
  • Fraud. Also difficult to prove, but if the will’s author was tricked into signing a will — maybe he or she was told it was a deed or some other legal document — the will is invalid.
  • Improper execution. If the will was not prepared or executed properly under the laws of the state in which it was created, it could be thrown out in court.
  • Lack of capacity. If the will maker was not mentally capable of thinking out the issues involved in a will at the time it was created, the will could be invalid.

Even if you have a valid complaint, you should weigh the costs versus the potential gains. Potential financial costs include your own legal fees, the executor’s legal fees if you lose your challenge, and the possible loss of whatever share of the estate you were entitled to receive if the will included a “no-contest provision” and you lose your challenge. There are relationship costs as well because contests often pit sibling against sibling or parent against child. You may prevail in court, but at the expense of a severed relationship. So before you decide to go to battle for what should have been rightfully yours, ask yourself, is it really worth it?

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Filed under Creating a Family Legacy, Estate Planning

All Eyes on Europe

On a broad basis, U.S. stocks had their third straight week of gains. The DJIA rose 1.4%, while S&P 500 gained 1.1%. The NASDAQ did not fare as well, losing 1.1%. For the year, the S&P 500 remains down 1.5%. Globally, stocks have not fared as well, with the Global Dow down 11.5% for the year.

As expected, third quarter corporate earnings have been solid. 41% of the S&P 500 constituents have now reported earnings, with 72% beating expectations. Only 17% have been below estimates. Annualized growth rates for earnings are in the 14-15% range so far. However, earnings growth rates are expected to slow to just below 12% in the fourth quarter. Growth rates are important because a stock’s price generally trades based on the anticipated future cash flows of the company.

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European debt woes continue to dominate headlines. Despite pressure from the G20 to announce a formal plan for the containment of damage from the debt crisis, European leaders continue to debate how they will increase the European Financial Stability Facility’s (EFSF) funding. Anticipation is that an announcement will happen this week, but it may not be feasible. This is because the only way to know how much to fund the EFSF is to know how much of a haircut Greek bondholders are going to have to take. In other words, how much are the European banks that hold Greek debt going to lose? It is imperative that these banks are able to withstand the losses in order to avoid global contagion.

It remains likely that that the European issues will be solved. It may take China, the U.S., and other members of the International Monetary Fund stepping up to help fund the EFSF. So far, Treasury Secretary Geithner has been firm in his stance that the European Union has enough amongst its members to handle the issue. When push comes to shove, we’ll see where he really stands.

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Taxes and Spending

stacey10 Recent census data indicates that the median household income in the U.S. is $49,445, meaning half the households in America make more and half make less.  If your household income is above $170,000, you made the top 20% in the country; at $288,000, you make the top 5%.

Statistics also show that almost all of those below the median household income pay no federal income taxes at all.  The top 10% of wage earners pay 70% of all federal income tax and the top 5% pay 58%.  My question is: what is the “fair share” for each of these segments?

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The chart below shows a 65-year historical perspective of federal government spending (black line) and taxes (blue line) as a percentage of GDP.  When looking at our debt, spending and taxes, it seems to me that a combination of increased revenue and reduced spending is necessary for us to dig our way out of our debt hole.  I like the idea of some sort of tax reform combined with marginal tax rate cuts (for individuals and corporations) as this would raise incentive along with producing revenues.  With taxes running below the 65-year mean of 18% at 17.1% of GDP, I believe this is achievable.

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The other point I would make from this chart is that government spending has exploded to 25.5% of our economy, well above the historical mean of 19.6%.  The Simpson-Bowles deficit commission argues that this should be cut to 21%.  I think 21% should be our minimum goal.

After spending several weeks in a fairly narrow trading range (as we predicted), the odds are increasing for a year-end rally in stocks.  – Stacey Wall

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Another Case for an Independent Trustee

In In re Eiteljorg, 951 N.E.2d 565 (Ind. Ct. App. 2011), the case involves claims of breach of fiduciary duty by the Administrators of the Estate of Sonja Eiteljorg, and the Co-Trustees of a Q-Tip Trust that was funded from the estate of her late husband, Harrison Eiteljorg. A second marriage for both, Sonja and Harrison had three children between them: Roger was the stepson of Harrison, and the biological child of Sonja. Nick and Jack were Harrison’s children by a prior marriage.

After Sonja’s death, the remainder beneficiaries of the Q-Tip Trust had demanded a distribution of $2,000,000, and the trustees offered $1,000,000 because they estimated the estate could be liable for a further $2,000,000 in federal estate taxes. The intermediate appellate court, over a dissent, affirmed a lower court’s finding that the trustees had breached their duty to administer the trust according to its terms by failing to make a timely distribution.  Ultimately, the trustees were ordered to distribute $1,500,000 plus lost interest from the original date of the request, until the date of distribution. The real damage however is likely to be a family that is broken apart.

In preparing their estate plan, the Eiteljorgs do what many families do in an attempt to ensure that no family member is left out: Sonja named Roger as executor in her will, and Harrison named Sonja, Roger, Nick, and Jack all as co-trustees of the Q-Tip trust at his death. The court record states: “[harmony was short-lived among the co-trustees, though, as they subsequently found themselves mired in major disagreements about the proper allocation of trust assets.”  Sonja and Roger resigned as co-trustees, after a settlement agreement was reached with Nick and Jack. It’s worth noting that the trust held approximately $6.5 Million in assets.

This estate was ripe for conflict from the beginning. Second marriage, blended family, large estate, and each heir given various capacities that beg for conflict. Why pit family members against one another this way? Did the drafting attorney offer any guidance or encouragement to choose an independent trustee and executor? Did anyone ever warn them of the conflict they were setting their kids up for? Was the decision to name family members in these capacities made in order to save trustee and executor fees? If I’ve heard it once, I’ve heard it dozens of times, “Why pay someone else to do this. Our kids won’t fight over this.”  Famous last words.

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Weekly Market Update–S&P 500 & NASDAQ Have Best Week of the Year

Stocks soared on the hopes that a European debt solution is nearing. The DJIA gained 4.9% for the week ending October 14th. The S&P 500, NASDAQ, and Russell 2000 (small cap stock index) all had their best weeks of the year. The Russell 2000 popped 8.6%, while the S&P 500 and NASDAQ gained 6.0% and 7.6% respectively. The S&P 500 remains down 2.6% for the year.

After initially voting against expanding the powers of the European Financial Stability Facility (EFSF), Slovakia provided the final approval necessary. This calmed fears of a European banking crisis and sent equity markets rocketing higher. Bond prices fell as the 10-year Treasury yield jumped 0.16% to 2.26%.

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Question of the Week

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Filed under Government & Money

Q3 Ends, But will Q4 Be Better?

Stocks ended the week mixed, with the DJIA gaining 1.32% and the S&P 500 and NASDAQ losing 0.44% and 2.73% respectively.  Concerns over a Greek default lingered over the markets as the third quarter came to a close.  Fortunately, the German parliament voted overwhelmingly to increase its contribution to the European Financial Stability Facility (EFSF) and expand its bond purchasing program.  Finland and Austria also agreed to the expansion of the EFSF.  In the meantime, to help balance its budget and qualify for its next round of bailout money, Greece adopted new property taxes.

After a positive first half of the year, the third quarter hit investors like a ton of bricks.  All major stock indexes are down for the year.  The S&P 500, which represents a broad basket of U.S. large cap stocks, is down 10%.  U.S. small cap stocks, represented buy the Russell 2000, are down 18%.  Globally, stocks have not fared any better, with the MSCI EAFE Index down nearly 15% and the MSCI Emerging Markets Index down over 23% for the year.

The question investors are now faced with is, “will the fourth quarter be better?”  Chances are that markets will remain volatile.  From a technical perspective, we have not broken through the lows made in early August.  History suggests that we need to retest and probably break through those lows. However, seasonal tendencies suggest we could get a year-end rally.  Look for equity markets to get worse before they get better; however, this should set up a tactical buying opportunity.

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