[00:00:00] Speaker A: What are three things that every lawyer and every estate planning client should know to avoid getting into trouble when you're handling your estate plan amendment or when you're creating your estate plan from scratch?
Hey, I'm Joe Siegel, your real estate asset protection attorney here in Orlando, Florida. And today I want to talk about a case that came up in August 2025. It's called McGee vs McGee. It's out of the 2nd District Florida Court of Appeals, and it's a civil case. Well, fairly simple. Mr. McGhee had a revocable living trust. And in that revocable living Trust, he made Mrs. McGee his wife, the trustee. Upon his death, she would take over. And in that trust from 2014, he would leave everything equally to his wife and his daughter. Daughter. Well, in 2021, he decided he wanted to change this plan, so he went to a different attorney, and he did a whole new estate plan with a new trust, the 2021 trust. And in that trust, he made his wife the successor trustee, just like in the prior trust. And then he left everything solely to his wife. Well, you can probably see where this is going. But eventually, of course, Mr. Minkie died. Well, unfortunately, he had titled real estate and a lot of bank accounts and a lot of others in the 2014 trust. So everything was titled in that trust name with that trust date initially. And when he died, Mrs. McGee was sitting there, and she's going, okay, well, now I'm the new trustee. I should get everything into the 2021 trust. And daughter goes, wait, wait, wait. No, you're not. I'm supposed to get. I'm supposed to get a portion of dad's property under the 2014 trust, because that's how everything's titled. So the Second District Court of Appeals heard this case, the trial court, after hearing and having a trial, the trial court said, you know what? I think his intent really was to just reform or amend the 2014 trust to change it to where everything, instead of going to wife and daughter, is just going to the wife. So the trial court said, it's a reformation. It's a new. It's a. It's not a whole new trust. It's simply an amendment of the 2014 trust. So everything that's titled in the 2014 trust is now deemed to be titled in the 2021 trust. Therefore, Mrs. McGee gets everything. Daughter McGee gets nothing. So it goes to the court of appeals. Of course, daughter McGhee didn't like that holding. So the court of appeals said, hey, this is a statutory interpretation. We Are merely reinterpreting the statute so we don't have to take everything that happened at the trial court as gospel. We can review this whole thing, what they call de novo, brand new. We can look at it with fresh eyes. And when the court of appeals looked at it with fresh eyes, they reviewed the evidence again, everything that was in the record, and they said, no, we think he intended to make a whole new trust. And here's why. Because when they took testimony from the attorney who prepared the 2021 trust, the new trust, he said under oath, hey, if I had known that there was a 2014 trust, I would have just done an amendment or a restatement of the 20 trust and created an amended and restated 2021 trust. And then that would have made it extremely clear his intent was simply to leave everything in the 2014 trust's name. But now it's amended to be a 2021 trust. Makes sense. So the court said that, well, because that intent was shown through the lawyer's testimony, then it is a whole new trust. And therefore, everything that had been titled in the 2014 Trust needed to be deeded. And bank accounts, investment accounts, insurance policies. If the trust was named as a beneficiary, retirement accounts. If the trust had been named as a beneficiary, the retirement account beneficiary would have to be changed to the 2021 trust from the 2014 trust. Because it's like we create a whole new entity, a whole new company to receive the largesse of Mr. McGee's estate. And then that was supposed to go to Mrs. McGee, but guess what? Mr. McGee never retitled anything into the 2021 trust. Because of course, in his head, hey, I just created a new trust. It's all the same as the 2014 trust. And therefore, everything's just going to pass the way now that I've changed it. And probably, I don't know, I can't read his mind, but probably a good reason that a lot of people would think this is because typically with a will, when you do a new will, it completely replaces the. The old will. Nine times out of 10, that will, the old will is as if it's done, it's gone, it never happened. So if you had left everything to your wife and daughter in the old will, and now you change the new will and you leave everything to the wife, the new will is going to control. Assuming everything's been executed properly and everything's been followed, all the formalities have been followed, and everything's done right in that new will. Unfortunately, a trust does not operate like a will in that way. A trust is a little bit different because it's a living document that can speak as soon as. As soon as you create it and while you're alive. So when you put property into that trust, while you are alive, that property is now part of that trust. So you simply have to amend, or what we call restate, where we would basically just replace that trust. But we make it extremely clear in the new restatement of the trust that, hey, he had this trust in 2014. His intent is just to replace all the words that were in that trust with the words that are now in this piece of paper or this whole stack of papers. And this is going to now govern what happens with all the property that was put into that trust. However, if you do it sort of like a will where you go, okay, well, this is just a whole new will. And it doesn't ever talk about the 2014 trust. It only talks about the 2021 trust. And it's like it's a whole new thing. Because people can create more than one trust during their life. You can have multiple trusts, of course, during your life, and you can put some things in this trust and other things in that trust. So that's how the appellate court looked at. They said, hey, Mr. McGee created a whole new trust. He could have put other things into that trust. He could have taken things out of the 2014 trust, put it into the 2021 trust, and he didn't do it. So therefore, Mrs. McGee has to administer. She has to administer both trusts. But there's Nothing in the 2021 trust to administer. Her job is very easy. There's nothing to do there. But over in the 2014 trust, there's a lot of stuff in there. She's got to administer it. She's got to distribute it according to what the trust says and handle it exactly what the way that Mr. McGee wanted her to handle it. So that brings us to. Okay, what do we learn from this case? First of all, I want to talk to other attorneys out there, I think attorneys who do a lot of estate planning. It's sort of rote. It's sort of standard operating procedure. That one of the things, one of the questions you are going to ask your clients on intake, whenever you're bringing this new client in or even an existing client, I would. Even if this person has been going to you for matters for years, make it a standard operating procedure that you ask them in writing, do you have an existing Estate plan or a trust agreement that you've ever signed, a will, powers of attorney, HIPAA compliance documents, pre need guardianships. Do you have any of these documents that you have ever executed before with any other lawyers or even with our office? Because we may just simply not have them in our files anymore. And we need, you need to tell us, do you have these? So that's your first step as an attorney who's going to be doing estate planning is number one, ask them, do you have a prior estate plan and any documentation. Number two, review that prior estate plan, tell the client to send it to you, bring it to you, whatever, and you need to review it because then you're going to, that's going to trigger you to go, okay, well I need to know too, if they've already done a trust, what have they put into it? You'd be surprised at how many people have come to us who have trust agreements already. Maybe it's trust agreement they entered into in Ohio or Michigan or Illinois before they moved to Florida. And we go, okay, well we need to see those documents. But that, and they go, but that's for Michigan, that's for whatever care about that. And I go, I need to see it and I need to know what's titled into it. You need to find everything that you have ever titled into this and trigger them with IRA beneficiary designations, life insurance beneficiary designations, pay on death, transfer on death, designations on investment accounts, bank accounts, cars, if they've put their cars, any of their personal property into this trust. You need to know that and review that prior plan, review what they put into it and then determine whether the client really wants to just amend what's there and explain to them, you know, hey, you've already got property in there, so we just should really amend this and then we'll just change the beneficiaries or we'll restate it completely, just completely replace it. But we show our intent that everything sorry there stays there. And now these, this new document controls what's going to happen with the stuff that's in that trust. And number three, what a lawyer who's doing estate planning has to put in writing, that makes it extremely clear, a memorandum or whatever you've got, that makes it extremely clear whether you are going to help them fund that trust, put things into the name of that trustee or not. And if you are not, you make sure that they sign off on that, saying they understand that is not part of the services that you are providing to them because you don't want to get in trouble. Either an ethical or a malpractice violation that you have just simply not told them that you're not going to do it. And they are assuming that you, as their attorney, you did the trust. So now you're going to make sure all the real estate's titled properly into the trust. You're going to make sure all their bank accounts are titled. You're going to make sure their investment accounts and beneficiary designation, you're going to be in charge of that. Very few lawyers that I know take on that obligation a hundred percent. Some of us will take it on here and there partially, but it's rare to find that. But you have to make sure that the client understands whether you are or are not going to do that. So those are the top three things that an attorney should learn from McGee versus McGee. Now, from a client standpoint, there are three things that every client should have learned from this case, from McGee versus McGee. So. So, number one, gather all the copies of all your prior plans, everything that you have ever executed related to an estate plan that you have, especially if there's a trust involved. Make sure that you have all those and that you also pull together if you have deeded anything in, if you have changed beneficia, fishery designations on any accounts, anything like that, pay on death or transfer on death designations on any accounts. You make sure you gather all that together and you make sure you get that to the attorney. Number two, you need to have a very clear discussion with the lawyer who is handling your estate plan changes to make sure and make it clear whether you simply want to change the plan that was before, whether you want to replace it, or whether you want to create a whole new one that will have different assets in it to be handled in a different way for different beneficiaries. And maybe you have your house still in Ohio or Illinois or Michigan, you still have property up there, you have some investment property or commercial property in those states. And now you've moved to Florida and you decide, hey, I want to go ahead and just leave those as they are in that old trust. I just want to amend it to change it to where instead of going to my, my, my new spouse, because your prior spouse that you built that with has now passed away.
So instead of leaving all that to my new spouse, I want to just revise that old trust that everything's titled into. I want to amend it to where it's clear that everything only goes to my children that were born of my marriage. With my prior spouse who's, who's gone before me. Now I want a new trust that will deal with this new property that my new spouse and I are buying together, that we're building together. And this will have an entirely different plan behind it. That's perfectly okay to do that. But you want to be extremely clear with your attorney what your plans are and what your intention is. So number two, be clear, be clear in your mind and be clear with the attorney what you really want. And number three, if it is a new plan, whether it's a brand new plan and you never had a prior plan before, or whether you are just amending a prior plan, discuss very carefully with your attorney what should be retitled into the trust. And also be very clear with the attorney whether the attorney's going to do it or whether they expect you to do it, or whether it's just an extra service that they will be happy to do for you, but it will cost extra money. It's going, it's a different service, it's an additional service. It is not included in the initial drafting of the documents, or it is, or it's not. So just be very clear. Usually during your intake process, especially if you're talking about you're going to do a trust based estate plan, you're going to want to be very clear with the attorney, get expectations set up front. Okay, for this that we are doing, you're saying that I've got three LLCs, I've got four land trusts, I've got five properties outside the state of Florida. What exactly after all this estate plan is done, this trust is created and everything else is done, what are we going to retitle into what vehicle? Whether it's LLCs or into the trust or how we're going to do that. And are you the lawyer handling that or am I expected to now go out after all this is done and I find different attorneys to do all of that, or will you work with other attorneys to do that? And is all that included in this price or is this additional? So be very clear, make sure you get all your documents together and be clear in your mind and be clear with the attorney who is doing what and what it is you want to do. So that's my five, ten minutes here talking about McGee versus McGee out of the second second district of the Florida Court of Appeals in August 2025 and what it really clarifies for both attorneys as well as for estate planning clients. If you guys have any questions about anything, I'll always be happy to, you know, help you out in any way we can. Give us a call or visit our
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[00:14:19] Speaker B: Thanks for listening to this edition of Trust this. If you got something out of it, please press like and subscribe and give us a five star review to help us reach others who can benefit from this.
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