With changes in estate tax rules, reduced oversight by regulatory agencies and organizations, and marketplace competition, a wide variety of professionals and paraprofessionals now call themselves "estate planners," a province once exclusively belonging to lawyers. Most lawyers still view themselves as central to a client’s estate planning process, but financial planners, accountants, insurance salespersons and stockbrokers are today more likely to be involved in the planning process than in years past. Most often that’s a good thing, but sometimes the fragmentation leads to unhappy results—and sometimes even to litigation.

Josephine Notgrass, an elderly Tennessee woman and former teacher, counted herself lucky to have the help of her former student Margaret Akins. Ms. Akins had taken high school French and piano lessons from Ms. Notgrass, and had then gone on to teach school herself, had gotten a real estate license and ultimately a law degree. After Ms. Notgrass’ husband died in 1989, Ms. Akins increased her assistance to her former teacher, and eventually moved in with her and provided nearly all her care. Ms. Notgrass was grateful; not only did she give a power of attorney to Ms. Akins, but she also changed her will to leave her dairy farm to her former student.

Ms. Akins hired a local accounting firm to handle Ms. Notgrass’ taxes, and she asked the accountant for suggestions to reduce estate tax liability on Ms. Notgrass’ death. The accountant suggested a limited partnership, and even located an attorney who could prepare the necessary documents. The attorney never met with either Ms. Notgrass or Ms. Akins, but simply sent the documents to them for review. They looked them over with Ms. Notgrass’ long-time attorney, and then signed everything. Among the papers: a transfer of the farm into the partnership, and a gift of a $11,000 interest to Ms. Akins.

Ms. Notgrass died just four months later. It wasn’t until after her death that Ms. Akins realized she had a problem; she was supposed to get the dairy farm from Ms. Notgrass’ estate, but it now belonged to the limited partnership and she would not receive anything beyond the $11,000 interest in the limited partnership she had already received. She sued the lawyer who prepared the partnership documents.

The judge hearing the case threw Ms. Akins’ claim out, ruling that the lawyer had not represented her and owed her no duty. The Tennessee Court of Appeals upheld the dismissal. Akins v. Edmondson, June 12, 2006.

In addition to the important legal principle involved, Ms. Notgrass’ story illustrates a practical consideration. Without one lawyer in charge of coordinating the various concerns in her estate plan, one of her main purposes was frustrated.

Would you like to subscribe to Elder Law Issues? Simply provide your e-mail address and name below, and click "Subscribe". At the same time, you may choose to also subscribe to The Voice, the newsletter of the Special Needs Alliance.

Privacy note: We do not ever use your e-mail address or name for any purpose other than to send out our subscription-based newsletter. You can rest assured that we will not sell, trade or share this information with any other person or entity. We have no ancillary or associated companies or entities to which we could provide your e-mail address, either.

© 1993-2009 Fleming & Curti, P.L.C.
330 N. Granada Avenue, Tucson, Arizona 85701
520-622-0400 /  FAX: 520-203-0240