TODD Or LADYBIRD - WHY NOT? LADYBIRD OR TODD WHICH
TODD or LADYBIRD - WHY NOT?LADYBIRD OR TODD - WHICH ONE GOES HOME WITH YOU?Patricia Flora SitchlerLaw Offices of Patricia Flora SitchlerP.O. Box 999La Vernia, Texas er.comTexas Land Title InstituteFriday, December 9, 2016San Antonio, Texascopyright 2016
PATRICIA (PATTY) FLORA SITCHLER, CELA*THE LAW OFFICE OF PATRICIA FLORA SITCHLERP.O. Box 999La Vernia, Texas 78121(210) 816-1761patricia.sitchler@gmail.com*Certified as a Elder Law Attorneyby the National Elder Law Foundation as recognized bythe Texas Board of Legal SpecializationEDUCATIONJ.D. Degree (magna cum laude), St. Mary’s University School of Law, 1990B.A. Degree (mathematics), Trinity University, 1975PROFESSIONAL ACTIVITIESSolo practitionerAdjunct Professor of Law, St. Mary’s University School of Law (1998 to present)Co-Chair, Long Term Care, Medicaid and Special Needs Trusts Committee of the Real Property, Trusts &Estates Section of the American Bar Association (2010-2013)Member, National Academy of Elder Law Attorneys (national and state chapters)(State Board of Directors,2000 to 2006, 2009 through 2012, Texas Chapter President 2004-2005)Member, Special Needs AllianceMember of the College of the State Bar of Texas (1997 to present)Member of the State Bar of Texas, San Antonio Bar Association; Texas Trial Lawyers Association and SanAntonio Trial Lawyers AssociationPlanning Committee Chair, State Bar of Texas, Elder Law and Guardianship Course (2004)Planning Committee Member, State Bar of Texas, Elder Law Course (2000, 2001, 2003-2008, 2013-2016)Planning Committee Member, State Bar of Texas, Advanced Estate Planning Course (2008 & 2013)Planning Committee Member, The University of Texas School of Law Estate Planning, Guardianship andElder Law Conference (1999 to present)Co-Director, The University of Texas School of Law Special Needs Trust Conference (2005 to present)Listed in the 2011 Inaugural Edition, Martindale-Hubbell Bar Register of Preeminent Women Lawyers (and in2012-2014)Listed in Martindale-Hubbell Bar Register AV Preeminent (1999-2016)Listed in 2016 Martindale-Hubbell Bar Register AV Preeminent, Judicial Edition.Listed in Best Lawyers in America in Elder Law (2007-2016)Listed in Texas Monthly Super Lawyers 2004-2016 in Elder Law and Top 50 Lawyers in South and West Texas(2013).Listed in Scene in SA San Antonio’s Best Lawyers in Trust and Estate Law (2008-2016)Co-Author of Save My Home! Saving Your Home, Farm or Ranch from Medicaid Estate Recovery in Texas, Elder LawTrio Press, Houston, 2005.Co-Author of Elder Law, Texas Practice Series Vol. 51, Thomson-Reuters (formerly West Publishing), 2008 topresent.Named the Outstanding Attorney in San Antonio in Elder Law and Estate Planning (2013) by the San AntonioBusiness Journal.Named in Best Lawyers’ 2016-17 and 2014-15 San Antonio Trusts and Estates “Lawyer of the Year.” (only asingle lawyer in each practice area in each community is honored as Lawyer of the Year).Law Office of Patricia Flora Sitchler named in Best Lawyers’ Best Law Firms 2016-17.LAW-RELATED PUBLICATIONS AND PRESENTATIONSAuthor, TODD or Ladybird - Why Not? Texas Land Title Institute, San Antonio, Texas, December 9, 2016.Author, Sex, Drugs & Rock-n-Roll: 2016 Top 10 Elder Law Issues for our Boomer-Clients, State Bar of Texas EstatePlanning & Probate Drafting, Dallas, Texas, October 6, 2016.Author, Elderly/Disability Issues and Medicaid, SSI and Social Security Disability; 2015 Graduate Texas Trust School,Wealth Management & Trust Division of the Texas Banker’s Association, Dallas, Texas, July 2016.Author, Powers of Attorney: Recent Developments, State Bar Advanced Elder Law Conference, Dallas, Texas, April15, 2016.Author, Sex, Drugs & Rock-n-Roll: 2016 Top 10 Elder Law Issues for our Boomer-Clients, Docket Call in ProbateCourt, San Antonio, Texas, February 12, 2016.Author, The SNT Process, National Structured Settlements Trade Association, Fall Educational Meeting,
Phoenix, Arizona, October 29, 2015.Author, Creating the Trust: SSA Requirements to get a Self-Settled Trust Accepted and Funded- Doing it Right, StetsonUniversity School of Law Basics of Special Needs Trusts, St. Petersburg, Florida, October 15, 2015.Author, Powers of Attorney: Recent Developments, University of Texas School of Law Estate Planning, Guardianshipand Elder Law Conference, Galveston, Texas August 6, 2015Author, Elderly/Disability Issues and Medicaid, SSI and Social Security Disability; 2015 Graduate Texas Trust School,Wealth Management & Trust Division of the Texas Banker’s Association, Dallas, Texas, July 2015.Author, Creating a SNT without Creating Malpractice, State Bar of Texas Advanced Elder Law Conference,Houston, Texas, April 9, 2015.Numerous presentations 1996 though 2014.
Texas Land Title InstitutePage 1LADYBIRD OR TODD - WHICH ONE GOES HOME WITH YOU?The purpose of this presentation is to compare and contrast the Transfer on DeathDeed adopted by the Texas legislature in 20151 with the Ladybird deed also known as a deedretaining a life estate with a power of appointment. These two deeds arose out of two separatepurposes. The presentation will discuss those purposes and the potential use of each deed.The Ladybird deed has been around since about 2005, the year that the Texas Health& Human Services Commission adopted rules implementing the 2003 Medicaid EstateRecovery statute. Ladybird Deed is the slang name for an Enhanced Life Estate Deed or aDeed retaining a life estate with a power of appointment. A Grantor transfers property to agrantee retaining a life estate along with the power to sell the property retaining the proceedsof the sale thus cutting off grantee’s right to the property.2The Transfer on Death Deed is statutory, passed by the 84th Legislature and waseffective on September 1, 2015. In reviewing some of the estate planning legislation out of the2015 legislature, there appears to be a mandate to provide a self-help means of transferringproperty at death. For example, Senate Bill 512 requires the creation of statutory Will formswhile Senate Bill 462 ultimately enacted the Transfer on Death Deed that included a statutoryform to transfer real property outside of probate.PURPOSES:The legislative history of SB 462 sets out the purpose for creating the statutory deed:Nearly all probate matters require legal counsel, and many beneficiaries areunable to afford legal counsel. As a result, otherwise inheritable real property isnow passed through intestacy to pay for the decedent's estate. This problem canalso lead to cloudy titles and complex unintended co-ownership structures thatpose difficulties for owners, title companies, local governmental entities, andother real estate stakeholders. S.B. 462 creates a Transfer on Death Deed, whichis a way for a real property owner to transfer real estate property while living,with or without a will. It will allow clean title to pass to the respectivedescendant or beneficiary without going through probateThe Texas Legislature enacted portions of the Uniform Real Property Transfer on Death Actto set up a simple process for the non-probate transfer of real estate in Chapter 114 of the1 SB 462, 84th Legislature.2 Texas Estates Code §111.052.-1-
Texas Land Title InstitutePage 2Texas Estates Code.3 Thus, the primary purpose of a ToDD is for estate planning as stated inthe legislative history to provide an individual with a simple and inexpensive way of passing realproperty at death. Of course, using a ToDD to pass real property outside of the probateprocess could also avoid Medicaid Estate Recovery, as discussed below.While the Ladybird deed also passes assets outside of probate creating the same simpleand inexpensive way of passing real property at death, the primary purpose of a Ladybird deedis to avoid Medicaid Estate Recovery. In order to understand the original purpose forexecuting a Ladybird deed, there needs to be a little background.MEDICAID ESTATE RECOVERYIn 1987, the Texas Legislature buried an estate recovery law in a statuteciary during thetransferor’s life.If Grantee has no notice ofthe ToDD, Grantee maylose very valid governmentbenefits upon the death ofthe transferor. Anindividual cannot disclaimin order to preserveeligibility for Medicaidprogram benefits andSupplemental SecurityIncome (SSI).Tex. Est. Code §114.056“A conveyance of an estateof inheritance, a freehold,or an estate for more thanone year, in land andtenements, must be inwriting and must besubscribed and deliveredby the conveyor or by theconveyor’s agent authorizedin writing.” Texas PropertyCode §5.021Divorce revokes the deedYesTex. Est. Code §114.057NoHomestead rights & advalorem tax exemptionsdoes not affectTex. Est. Code §114.101should not affectCreditor’s rights and due onsale clausedoes not affectTex. Est. Code §114.101should not affectEquitable rights in favor ofgranteeNoneTex. Est. Code §114.101NoneSale upon death oftransferorA title company may notno limitationimmediately insure title inthe sale of propertyobtained via a ToDD.Section 114.106(a) providesthat "to the extent thetransferor's estate isinsufficient to satisfy a claimagainst the estate, expensesof administration, any estatetax owed by the estate or anallowance in lieu of exemptproperty.the personalrepresentation may enforcethat liability against realproperty transferred under aToDD."-7-
Texas Land Title Institutetransfer for MedicaidpurposesPage 8should not be adisqualifying transferno disqualifying transfer asrecognized by HHSC.9SOME THOUGHTSThe purpose of a ToDD is to provide persons who cannot afford legal fees the abilityto transfer property to transferees without the expense of probate. Such transfer occurswithout notice and delivery. But it would not be unusual for the transferee to have a modestestate similar to the Transferor. If a transferee is disabled, needing or receiving governmentneed- based benefits such as SSI, one of the various Medicaid program benefits, section 8housing and/or Supplemental Nutrition Assistance (a.k.a. food stamps), the sudden receipt ofreal property at the death of a Transferor could disqualify the transferee with little or no chanceto remedy the loss of benefits unless legal counsel is engaged. Even an astute attorney may notbe able to resolve the loss of benefits. For example, disclaimer generally disqualifies anindividual for many need-based government benefits. Also, it may be impossible to sell the realestate passed via a ToDD immediately after the Transferor’s death in order to maintain needbased government benefits if the sale requires title insurance due to Texas Estates Code§114.106(a). However, if estate planning is the only issue and government welfare benefits ofthe transferee are not at issue, then a statutory ToDD may be the answer. Hopefully, there willbe sufficient education of our citizens so that the Grantor/Transferor can make an informeddecision on the appropriate deed needed to avoid probate.9 HCFA Transmittal No. 64, November 1994, provides that the Ladybird Deed is not atransfer. 3258.9A-8-
Equitable rights in favor of grantee
Transfer for Medicaid purposes ToDDshould not be adisqualifying transfer Ladybird deedno disqualifying transfer.as recognized by HHSCSome Thoughts The purpose of a ToDD is to provide persons who cannot affordlegal fees the ability to transfer property to transferees withoutthe expense of probate. Such transfer occurs without notice anddelivery. But it would not be unusual for the transferee to have amodest estate similar to the Transferor. If a transferee isdisabled, needing or receiving government need- based benefitssuch as SSI, one of the various Medicaid program benefits,section 8 housing and/or Supplemental Nutrition Assistance(a.k.a. food stamps), the sudden receipt of real property at thedeath of a Transferor could disqualify the transferee with little orno chance to remedy the loss of benefits unless legal counsel isengaged. Even an astute attorney may not be able to resolvethe loss of benefits.
Some Thoughts – cont. For example, disclaimer generally disqualifies an individual for manyneed-based government benefits. Also, it may be impossible to sell thereal estate passed via a ToDD immediately after the Transferor’s deathin order to maintain need-based government benefits if the salerequires title insurance due to Texas Estates Code §114.106(a).However, if estate planning is the only issue and government welfarebenefits of the transferee are not at issue, then a statutory ToDD maybe the answer. Hopefully, there will be sufficient education of ourcitizens so that the Grantor/Transferor can make an informed decisionon the appropriate deed needed to avoid probate.Some cases Blausey v. Van Ness, 2016 WL 4035591 (Ohio App. 6th Dist.) July 22, 2016. In2001, Verna Blausey signed a ToDD naming Richard & Verna Van Ness astransferees. Subsequently Blausey and the Van Nesses had a falling out.Blausey had an attorney come to the hospital and she told the attorney thatshe wanted a new Will, POA and ToDD so that Ronald and Jean Blauseywould “get everything.” The attorney drafted the Will and POA and they wereexecuted but admitted that he failed to draft a ToDD. Blausey died andRonald & Jean Blausey sued the Van Nesses for the valuable property thatpassed by the original ToDD. Lower Court granted summary judgment butAppeals Court reversed for further consideration of attorney’s admission that itwas solely his fault that the new ToDD wasn’t signed. On remand, the lowercourt held that the original ToDD passed title to the Van Nesses regardless ofthe attorney’s mistake to revoke it. On second appeal, the appellate courtupheld the lower court’s findings.
Some cases - continued In re Estate of Carlson, 367 P. 3d 486 (OK 2016). Properties that passed viaToDD to grantees were subject to a mortgage securing deceased grantor’spromissory notes. Secured creditors presented claims to the estate but thePR rejected the claims concluding that the grantee of each property wasresponsible for paying the debt. “Normally, when a decedent’s real propertysecured by mortgage passes to successors, ” by succession or Will, statelaws provide that “the successor or devisee must satisfy the mortgage out ofhis own property without resorting to the executor or administrator of themortgagor, unless there is an express direction in the Will of the mortgagorthat the mortgage shall be otherwise paid.” But passing title via a ToDD is notby Will or succession. Thus, the “notes were liabilities of decedent’s estate;mortgagee had the right to present a creditor’s claim before foreclosing; andgrantees had standing to bring ancillary petitions on the claim.”Some cases - continued Treadway v. Free Pentecostal Pater Ave. Church of God, Inc., Zimmerer, &CHS-Miami Valley, Inc., 2008 WL 921606. Burtle Zimmerer (daughter of thepastor) took church member, Dorothy Treadway, to an attorney who drafted aWill and ToDD in favor of Burtle. Burtle helped Dorothy while she was ill,placed her in a nursing home and then took her home on hospice but failed tokeep the grandchildren informed. Grandchildren sued, alleging fraud,conspiracy to defraud, conspiracy to interfere with expectancy of inheritance,interference with expectancy of inheritance, breach of fiduciary duty,conversion, incapacity to contract and intentional infliction of emotionaldistress. Lower court held that grandchildren didn’t have standing. Affirmedin part and reversed and remanded for consideration of the claim of intentionalinfliction of emotional distress.
Some cases - continued Sheils v. Wright, 357 P. 3d 294, Kan. App. 2015. “Grantee of ToDDwas entitled to only interest record owner had not conveyed, assignedor sold.”In re Estate of Scott, 842 N.E.2d 1071 (Ohio CA—13th dist, 2005) nowrit. “Grantor’s ToDD failed to validly effectuate transfer of propertybecause property [deed] was not recorded before decedent’s death.”Rickels v. Goyings, 2008 WL 1931874. The ToDD was ineffectivebecause it was signed prior to the effective date of the statute.Some cases - continued Hammond v. Hammond, 268 P. 3d 691 (Or. App—2011) Phrase “as asurvivor” rendered the deed ambiguous. Case was remanded to thelower court to construe the deed to determine if it was a transfer ondeath deed.In re Estate of Roloff, 143 P.3d 406 (Kan.App—2006) “Granteebeneficiary of real estate under ToDD owned the growing crops on thetransferred real estate.”Mattia v. Hall, 2008 WL 186650 (OhioApp—2008) ToDD must berecorded before death to be effective.
Some cases - continued My Father’s House No. 1 v. McCardle, 986 N.E.2d 1081 (OhioApp.—2013) Wife signed a prenup that allowed Husband to transfer propertyto anyone. H&W also filed incorporation papers creating a church – MyFather’s House No. 1. Husband transferred property to Michael usinga ToDD. Wife lacked standing to challenge transfer but corporationhad standing so the case was remanded.In re Estate of Frie, 2014 WL 37685 (Kan.App) Allegation that grantordid not sign in the presence of the notary. Lower court believed theproponent of the deed. Appellate court affirmed.Some cases - continued Ryerson v. White, 2014 WL 3700500 (Ohio App) Mom transferred realproperty via ToDD to daughter who took care of her until her death.Other daughter sued the caretaker sister for her perceived share ofMom’s estate. Caretaker-daughter won.Brown v. Ralston, --- N.E. 3d ---, 2016 WL 3668163 (OhioApp—2016)ToDD statute didn’t preclude granddaughter from asserting a claim forintentional interference with expectancy of inheritance.
Some cases - continued Fail v. Fail, 2010 WL 3324430 (Kan.App.) Son transferred his land todad to avoid creditor claims. Dad then transferred the land to othersvia ToDD. Son said the property was really his. “The doctrine ofunclean hands precluded imposing a constructive trust to restore realproperties and mineral rights to son.”Cook v. Coburn, 97 A.3d 892 (VT 2014) Divorce action held that whilehusband was grantee of a Ladybird deed, Grantor was still alive and sohusband’s interest was inchoate and not subject to a division indivorce.
The Ladybird deed has been around since about 2005, the year that the Texas Health & Human Services Commission adopted rules implementing the 2003 Medicaid Estate Recovery statute. Ladybird Deed is the slang name for an Enhanced Life Estate Deed or a Deed retaining a life estate with a power of appointment. A Grantor transfers property to a
Elizabeth Todd Grimsley Brown Her Todd Ancestors Tuesday, February 18, 2020 2 Robert Samuel Todd, Sr. married Ann Jean Smith. They had two sons, John and David Levi Todd. Ann died and was buried in Ireland. 1723 Birth of David Levi Todd (1723-1775) David Levi Todd, the second son of Robert and Ann Jean Smith Todd, was born in
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A ladybird deed, sometimes written as Lady Bird deed, is not a deed in and of itself. Rather, it is a term that describes a method of transferring real property by a warranty or quit - claim deed. Simply defined, a ladybird deed is a transfer of real prop - erty to a contingent grantee that reserves a life estate and the
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plant-feeding ladybird following infection (Fig. 2d). Sec-ondly, the effect of recombinantly expressed cwh1 pro-teins from two ladybird species (CM-C1a of C. montrouzieri and HA-C1b of H. axyridis) on bacterial growth was tested. Both recombinant cwh1 proteins lim-ited the proliferation of B. subtilis significantly but did
and measured pile capacities. API-1993 provides potentially non-conservative results for shaft capacity in loose sands, and in loose-to-medium sands with high length (L) to diameter (D) ratios. Figures 1 and 2 illustrate these skewed trends, reproducing the database comparisons given by Jardine et al (2005) between calculated (Q c) and measured (Q m) shaft capacities. 2.2.2 Non-conservative .
