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Electronic Study Guide to Accompany Wills, Trusts, and Estate Administration for the Paralegal, Fifth Edition

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Electronic Study Guide to Accompany Wills, Trusts, and Estate Administration for the Paralegal, Fifth Edition ELECTRONIC STUDY GUIDE TO ACCOMPANY WILLS, TRUSTS, AND ESTATE ADMINISTRATION FOR THE PARALEGAL, FIFTH EDITION 1 INTRODUCTION The wonders of the computer age over the past fifty years have made it possible for you, as a practicing paralegal, to complete your legal research tasks faster and with greater accuracy and efficiency. In fact, the former drudgery of doing legal research in a stuffy law library has now become an enjoyable, and even entertaining, experience that can be accomplished easily at home. Each chapter from the corresponding textbook has a chapter review in this electronic study guide. The chapters are divided into two sections: Section One—Review Activities includes finding and reading court decisions (cases), accessing a website to obtain statutes including current federal and state tax laws, and locating assistance for drafting legal documents or an estate plan; and Section Two—Vocabulary Review helps you to learn and utilize the legal terminology and concepts essential to the practice of wills, trusts, and estate administration. Often student assignments refer you to a website or to an actual case. The growth and development of the internet make it possible to quickly and accurately verify your sources that authenticate your research. Because the American population is living longer, major changes in the utilization of legal services have occurred especially in the area of estate planning. Elder Law was unheard of twenty years ago. Today, wills, trusts, and estate planning sites are available on the internet and many professionals (financial advisers), in addition to attorneys, are offering estate planning advice. The advancement of computer technology has been so rapid that, while doing your own research, you may find other internet sites easier to use than those suggested and you may also find case law from your jurisdiction that better answers a question or solves a problem. In addition to assignments in the study guide, your instructor may require other tasks or research, but you might want to use your acquired knowledge and training to prepare your own will and estate planning documents. For example, access http://consumer.pub.findlaw.com/nllg/forms/132.html to find a sample will form you could use to draft your will. Also, a sample living will can be found at http://lawsmart.lawinfo. com/documents/living_will.html if you are interested in having a living will. You can read the wills of several famous people at http://www.courttv.com/legaldocs/newsmakers/wills. As technology changes and advances, the rules of ethics and the law will have to be established or change as well. For example, some conflicts that are currently unresolved are the issues surrounding ownership of frozen preembryos and in vitro fertilization concerns. Cases that address these issues are: A.Z. v. B.Z. 431 Mass. 150, 725 N.E.2d 1051 (2000), Litowitz v. Litowitz, 102 Wash. App. 934, 10 P.3d 1086 (2000), and Kass v. Kass, 235 A.D.2d 150, 663 N.Y.S.2d 581 (1997). Tax legislation is constantly changing. For example, the federal estate tax has been revised and will be repealed in 2010. Caveat: For current federal estate tax rates and revisions, access http://www.irs.gov. Good luck with your studies and have fun keeping up with the ever-changing law! SHEPARDIZING YOUR WORK Once you find a case or a statute on point that answers your estate planning issue, you will want to make sure the legal authority is still good law. Pocket parts and supplements to resources should always be checked, but that is not enough. All sources should be shepardized. Shepardizing will show how other courts have treated the case, and if laws have been changed. When shepardizing a case, it is important to check both the official and unofficial cites for the case. If book volumes are available, carefully locate all of the necessary volumes. The front of each book will have a listing of materials your library should have. YOU MUST PULL ALL THOSE BOOKS AND CHECK YOUR CASE CITE IN EACH BOOK! The information contained in the Shepard’s Citation books is listed by book volume. Once you locate the volume, you need to find the appropriate page number and make sure your case has not been reversed or overruled. Of course you would want to make sure that there has been no negative treatment of your case, although positive information can be obtained from shepardizing as well. Also listed, will be other cases that have followed your case. These cases may add to your research and provide an even better case on point. The information contained on a page is abbreviated. At the beginning of each volume, you can find the abbreviations for the history and the treatment of the case. A Shepard’s cite will also list citations where the case has been criticized, distinguished, explained, harmonized, and questioned. Shepardizing a statute will show you how that law has been treated by the courts. Again, all necessary volumes must be pulled and checked. 2 The material contained in the Shepard’s Citation books is also available on CD-ROM. The correct CD needs to be selected and inserted. When the case cite is typed, its history will appear on screen. Whatever resources are available to you, be sure to check them all. The opposition in every case will be doing the same and you will want to avoid the professional embarrassment (career suicide?) of providing bad law to your supervising attorney or instructor. HOW TO BRIEF A CASE Several assignments in this electronic study guide refer to real cases. You may find it helpful, when reading the cases, to brief them. Briefing cases is a topic given extensive treatment in legal research and legal writing courses, but these introductory steps to briefs may prove helpful. 1. Identify the parties. Who is the plaintiff, the party bringing the lawsuit? Who is the defendant, the party being sued? 2. Ascertain the prior proceedings. What is the judicial history of this case? 3. Decide on key or material facts. A material fact or key fact is one that, if it were different, the court’s result would be different or it would not have been included in the court’s opinion. 4. Identify the issue. What is the legal question before the court? Stay away from such issues as, Will the plaintiff win? Will the appeal be successful? Rather, incorporate the key facts into the legal question. For example, is a will valid when the name of the executor has been erased? Is a holographic will valid when it was written by an alcoholic who had been drinking the day she wrote the will? There are many ways to write an issue, and there may be more than one issue in a case. 5. Identify the court’s holding and reasoning. How did the court reach its decision? What is that decision? Many textbooks provide more extensive coverage to this topic. There are five point briefs and twelve point briefs. Regardless of the number of points or parts you have in a brief, reading and analyzing cases and looking for the parties, prior proceedings, facts, issue, reasoning, and holding will assist you as you read and comprehend cases. It is helpful to write out a brief, and some cases take several readings to understand. The site at http://www.casenotes.com/how2brf.html is helpful. To illustrate how to brief a case, read Trumbull County Bar Association v. Hanna et al., 684 N.E.2d 329 (1997 Ohio) and the following brief. Parties Trumbull County Bar Association, relator Deiwerts, injured clients/public/victims of UPL Roger D. Hanna, respondent Estate Assurance, Inc. (EAI), respondent Estate Counseling Associates, Inc. (ECA), respondent Prior Proceedings Complaint was filed against Hanna and Estate Assurance, Inc., alleging the unauthorized practice of law. Board of Commissioners on the Unauthorized Practice of Law of the Supreme Court held hearing and determined that Hanna and ECA had engaged in the unauthorized practice of law. Facts Hanna, a financial planner, met with Deiwerts and advised them about estate planning and living trusts. The Deiwerts knew that Hanna was not an attorney. The Deiwerts completed an estate analysis form. Based on Hanna’s analysis, they were to receive two wills, two living wills, four deeds, and registration documents for bank accounts and bonds. The documents and estate analysis were forwarded to ECA and were to be reviewed by Boyle, a Pennsylvania lawyer, legal advisor, and director of ECA. Documents were prepared and Hanna explained them to the Deiwerts and then assisted them in their signing. The Board found that the documents were not properly witnessed and that the trust prepared prevented the Deiwerts from using their home as collateral and from using their bank accounts. They had to hire counsel to put their affairs in order. EAI purchased ECA after the incident. Parties stipulated ECA had engaged in UPL. 3 Issue Is a financial planner engaged in the unauthorized practice of law when he counsels clients about estate planning and trusts and obtains and helps execute estate planning documents like a will and trust? Holding Yes, such activities constitute the practice of law. Reasoning The Supreme Court held that Hanna was engaging in the practice of law. The court had held in earlier cases that the practice of law includes legal advice and counsel and the preparation of legal documents. Hanna, in conjunction with an out-of-state attorney, reviewed an estate planning analysis, told the clients what documents they needed, arranged for the preparation of the needed documents, and helped with executing the documents.
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