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ELECTRONIC STUDY GUIDE TO
ACCOMPANY WILLS, TRUSTS,
AND ESTATE ADMINISTRATION,
SIXTH EDITION
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INTRODUCTION
The wonders of the computer age over the past 50 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
chapter reviews are divided into three 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; 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; and Section Three—Case Studies.
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 20 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://www.ilrg.com to find a sample will form you could use to draft your
will. Also, a sample living will can be found at that site if you are interested in having a living will. You can
read the wills of several famous people at http://www.courttv.com.
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
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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.
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.lawnerds.com is helpful. Go to the “site map” and read the discussion on “how to
brief a case” for additional guidance.
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.
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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.
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.
These actions went far beyond financial planning advice; this was practicing law without a license.
The Board’s conclusion was adopted.
Case Study
80 Ohio St.3d 58
TRUMBULL COUNTY BAR ASSOCIATION
Hanna, who was not an attorney, advised Frederic
and Georgeanna Deiwert of Niles, Ohio, that it
would be desirable for them to have an inter vivos
or “living trust.” Relators charged that on Hanna’s
advice the Deiwerts paid Estate Counseling Associates,
Inc. (“ECA”) for documents establishing an inter
vivos trust and that Hanna answered questions about
and supervised the execution of the documents by
the Deiwerts.
Hanna filed an answer, stating that he was a
financial planner, licensed in insurance and investment products, that he met with the Deiwerts to
advise and implement a financial plan for them,
and that any questions he answered were incidental
to selling financial products to the Deiwerts. Hanna
stated that the legal documents were prepared by
a Pennsylvania attorney. EAI filed an answer stating
that it had purchased the stock of ECA after the
v.
HANNA et al.
No. 97–1021.
Supreme Court of Ohio.
Submitted July 7, 1997.
Decided Oct. 8, 1997.
The Trumbull County Bar Association, relator,
charged in a complaint that in 1991, respondents,
Roger D. Hanna of Youngstown, Ohio, and Estate
Assurance, Inc. (“EAI”), a Pennsylvania corporation,
entered into a joint venture to prepare and offer for
sale documents constituting an inter vivos trust. Relator
further alleged that in April, May, and June 1991,
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ever rejected. Hanna explained the documents prepared by ECA to the Deiwerts and assisted the
Deiwerts in signing them.
The board found that, contrary to Hanna’s
assurances, the inter vivos trust as written for the
Deiwerts may not have been suitable for their needs,
that contrary to the statement at the conclusion of
each will, the witnesses were not present and did
not observe the Deiwerts sign the wills, and that in
operation the inter vivos trust as written precluded
the Deiwerts from using their home equity as collateral and from using their checking account. The
Deiwerts employed a local attorney to put their
affairs in order.
The board concluded that Hanna gave legal
advice and counsel to the Deiwerts and thus was
engaged in the unauthorized practice of law. The
board also determined that ECA, but not EAI, had
engaged in the unauthorized practice of law.
Paul W. Newendorp and Robert F. Burkey,
Warren, for relator.
Lynn A Sheftel, Niles, for respondent Roger
D. Hanna.
Mark H. Aultman, Columbus, for respondent
Estate Assurance, Inc.
incidents described in relator’s complaint, that it has
never engaged in trust counseling or preparation
activities in Ohio, and that it never approved of
ECA’s method of operation.
On October 28, 1996, the parties filed a stipulation
with the Board of Commissioners on the Unauthorized
Practice of Law of the Supreme Court(“board”) that
a now-deceased Pennsylvania attorney, William D.
Boyle, who was not admitted in Ohio, was the
legal advisor and director of ECA and established
its procedures. Part of the fees paid by the Deiwerts
to ECA in March and June 1991 was transmitted to
Boyle for his legal work in preparing the trust documents. The owners and officers of ECA found that
Boyle had not given good legal advice and in June
1991 dismissed him as counsel. EAI, formed in 1990,
purchased ECA in early 1994, and since then ECA
has not marketed estate-planning services in Ohio.
EAI never approved, ratified, or continued ECA’s
methods of operation as conducted in 1991. The
parties stipulated that ECA, through Boyle, did
engage in the unauthorized practice of law, but
that EAI did not do so.
The board held a hearing on December 13, 1996,
and found that after Hanna attended a seminar
sponsored by ECA in 1990, he sold living trusts as
a means to avoid probate, using ECA promotional
materials and forms. In 1991, Hanna advised the
Deiwerts about estate planning and the advantages
of a living trust. On April 1, 1991, the Deiwerts
completed a form which acknowledged that they
retained the services of Hanna to assist them in
estate planning, that they were aware that Hanna
was not an attorney, and that they appointed ECA
as their attorney-in-fact to do all things necessary
in connection with estate planning. They also completed an “estate planning analysis” form, which
described Hanna as “Counselor” and “Reviewing
Office Manager.” As part of the analysis, Hanna
indicated that the Deiwerts were to receive two wills,
two living wills, four deeds, two registration documents for their checking account and savings account,
and one registration document for their municipal
bonds. Hanna forwarded the estate-planning analysis
and the Deiwerts’ payment to ECA, retaining $60 for
himself. Boyle reviewed the documents. Although
ECA told Hanna that Boyle would review the information submitted by Hanna and reject any applicant
not suited for a living trust, neither the Deiwerts’
application nor any others submitted by Hanna were
PER CURIAM.
In Land Title Abstract & Trust Co. v. Dworken
(1934), 129 Ohio St. 23, 28, 1 O.O. 313, 315, 193
N.E. 650, 652, we held that the practice of law
“ ‘includes legal advice and counsel, and the preparation of legal instruments and contracts by which
legal rights are secured * * *.’ ” In Green v. Huntington
Natl. Bank (1965), 4 Ohio St.2d 78, 33 O.O.2d 442,
212 N.E.2d 585, we held that a bank’s act of providing
“specific legal information in relation to the specific
facts of a particular person’s estate” constituted the
practice of law and should be enjoined. In Green,
we specifically declared that comments or advice
that a bank might give on the form of investments
or the management of assets did not constitute the
practice of law.
In this case, Hanna, in conjunction with a
non-Ohio corporation and an attorney not admitted
in Ohio, reviewed an “estate planning analysis”
completed by the Deiwerts, advised them that an
inter vivos trust would be suitable for their needs,
arranged the preparation of the trust and related
documents, including wills and conveyances, and
supervised their execution.
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Deiwerts’ daily life, and failed to provide for proper
witnessing and acknowledgments of the documents
that were prepared.
We adopt the board’s conclusion that respondent EAI did not engage in the unauthorized practice of law. Having concluded that respondent
Hanna did engage in the unauthorized practice of
law, we hereby enjoin Hanna from any further
activity involving the counseling of persons with
respect to their legal rights and the preparation of
legal instruments and documents to secure the legal
rights of any person.
All costs and expenses of this action are taxed
to respondent Hanna.
Hanna’s actions went far beyond advice to the
Deiwerts with respect to the form of their investments and management of their assets. Hanna advised
the use of a particular estate-planning device and
then, rather than recommending that the Deiwerts
contact their attorney about employing an inter vivos
trust, he personally arranged for the review of the
information and the preparation of the documents.
By so doing, Hanna, a nonlawyer, engaged in the
practice of law. Gov.Bar R. VII(2)(A) provides that
“[t]he unauthorized practice of law is the rendering
of legal services for another by any person not
admitted to practice in Ohio * * *.” Hanna, therefore, engaged in the unauthorized practice of law.
Admittedly, an inter vivos trust may be useful as
an estate-planning device. Unfortunately for the
Deiwerts, the device was both inappropriate and
ineffective in this case. Hanna gave erroneous
advice about the effect of an inter vivos trust on
estate taxes, arranged for the preparation of trust
documents which needlessly complicated the
Judgment accordingly.
MOYER, C.J., and DOUGLAS,
RESNICK, FRANCIS E. SWEENEY, Sr.,
PFEIFER, COOK and LUNDBERG
STRATTON, J.J., concur.
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