Wednesday, October 26, 2016
It is official—Governor Christie has signed the bill to repeal the New Jersey estate tax. Starting in 2017, the estate tax exemption amount will increase to $2 million with a general tax rate of 7.2% and up to 16% on estates over $10 million. The full repeal goes into affect starting January 2018.
But, how does this affect you? For those who have already prepared their estate plans, there is not much effect; however, you might be able to simplify your documents, such as those creating a trust for your surviving spouse. For those who domicile in New Jersey, you will no longer need to make substantial gifts during your lifetime because there is no worry for reducing your estate tax burden. For married couples with credit sheltering trusts, it may be a good idea to keep these estate vehicles but there is no longer concern over how much can be included in the trust. For those non-domiciled residents and those wishing to avoid the “death tax,” the incentive to move will be reduced starting in 2018. For those surviving spouses with money left in trust, once the repeal goes into affect, it might be beneficial to consider terminating the trust because the assets will not receive another step-up in basis. Finally, for those considering Medicaid planning, it is more prudent to leave assets in your name instead of giving them away early unless your estate is large.
See NJ Estate Tax Repeal: How Does This Affect You?, Kevin A. Pollock BLAWG, October 24, 2016.
Peter T. Wendel recently published an Article entitled, Setting the Record Straight: The ‘Flexible Strict Compliance’ Approach to the Wills Act Formalities, 95 Oregon L. Rev. (forthcoming 2016). Provided below is an abstract of the Article:
What degree of compliance with the Wills Act formalities should the courts require when analyzing whether a will has been properly executed? The conventional wisdom is that historically courts have insisted on absolute strict compliance, favoring formalities over testamentary intent. In 1975, Prof. John Langbein argued that substantial compliance with the Wills Act formalities should suffice. A little over a decade later, he modified his proposal, arguing for a harmless error approach.
Prof. Langbein’s proposals have been well received. Many academics have endorsed them. The Uniform Probate Code and the Restatement (Third) of Property have adopted his harmless error approach. Yet relatively few states have adopted either proposal. If Prof. Langbein’s substantial compliance/harmless error proposals are so much better than strict compliance, what explains the failure of most jurisdictions to adopt either of them?
This article argues that (1) many of the states intuitively realize that the issue is not as simple as Prof. Langbein depicts it – that ‘strict compliance’ is neither as monolithic nor as strict as he portrays it; (2) most jurisdictions, in fact, do not apply the strict compliance approach he describes but rather a variation of it – flexible strict compliance; and (3) the real issue is not whether substantial compliance/harmless error is better than traditional strict compliance, but whether substantial compliance/harmless error is better than flexible strict compliance – and the answer to that question is far from obvious. Flexible strict compliance adopts a more pragmatic approach to the public policy considerations underlying the Wills Act formalities, eschewing the functional approach and instead favoring an approach that balances testator’s intent with costs of administration and the potential for fraud, resulting in an approach that is more efficient than either substantial compliance or harmless error.
Tuesday, October 25, 2016
C. Lily Schurra recently published an Article entitled, What Ghost Up Must Come Down: The Highs and Lows of Psychic Mediums in Probate Law, 29 Quinnipiac Prob. L.J. 310 (2016). Provided below is a summary of the Article:
The goal of this analysis is to take an in-depth look at the way spiritualism has evolved in its connection to the law, particularly in regard to the role psychic mediums have played in that development, as well as what role they should play in the future. Despite the obvious evidentiary concerns of psychic mediums' presence in the courtroom, both case law and society have slowly begun to recognize the potential advantages that coincide with their use. Though certain preliminary steps necessarily must occur before including psychic mediums in probate law, there is a conceivable benefit to their use, as the trend toward societal acceptance through the last century indicates. In acknowledging “the modern appetite for psychic phenomena,” probate courts can enter a new age of dispute resolution, in which they utilize psychic mediums as resources to achieve a mutually beneficial solution for all involved, including closure for the people most deeply affected by the passing of a loved one.
The Sandoval family was horrified when they learned their loved one’s body was missing. The family sent his remains to the mortuary, but another man’s remains were sent back to them for cremation. In fact, his remains were misplaced for five days, leaving his family with unanswered questions. Eventually, the family learned that the remains were mixed up after the hospital alerted the mortuary. The family has been in touch with an attorney who is helping them file a claim.
See Family Upset After Bodies Switched at Denver Veterans’ Hospital, AOL News, October 21, 2016.
Stephanie Packer, a terminally ill mom of four, wants to be the face of the Right to Live movement, opposing the well-known Right to Die movement. Recently, Packer’s home state of California passed the law permitting doctor-assisted suicide, allowing terminally ill patients to forgo a painful end of life. Packer, however, wants to fight to live before ultimately accepting a natural end. She wants her kids to know that death is a part of life.
See Terminally Ill Mom Denied Treatment Coverage— but Gets Suicide Drug Approved, Fox News: Health, October 24, 2016.
Alan Newman recently published an Article entitled, Trust Law in the Twenty-First Century: Challenges to Fiduciary Accountability, 29 Quinnipiac Prob. L.J. 261 (2016). Provided below is a summary of the Article:
This Article analyzes recent legislative trends in trust law that undermine--sometimes intentionally and sometimes inadvertently--fiduciary accountability in the administration of trusts. A primary focus in this analysis is the growing use of third parties, often referred to as “advisers” or “protectors,” who are authorized to exercise control over the trustee's administration of the trust, and newly enacted statutes addressing their use in many jurisdictions. But fiduciary accountability for trustees has been weakened in recent years by state legislatures in a variety of other ways. Before turning to recent legislation addressing trust advisers and protectors, this Article examines statutes addressing: (i) exculpatory clauses; (ii) the trustee's duty to account; (iii) the limitations period for a beneficiary to pursue a claim against a trustee for breach; (iv) the trustee's duty of loyalty; (v) the nature of a beneficiary's interest in a discretionary trust; and (vi) trust decanting.
Monday, October 24, 2016
Bill Cornwell and Tom Doyle lived together as committed partners in a brownstone for over five decades. For most of their relationship, gay marriage was illegal, not allowing them to affirm their relationship. Two years ago, Mr. Cornwell died, bequeathing the valuable brownstone to Mr. Doyle, which is now in dispute. Mr. Cornwell’s nieces and nephews have ignored the bequest and claimed it as their inheritance, putting the brownstone up for sale at $7 million.
Mr. Cornwell’s will was only witnessed by one person, which makes the will legally invalid because of the need for two witnesses. Without a valid will, the law requires that Mr. Cornwell’s assets pass to his next of kin—his nieces and nephews. Mr. Doyle’s argument is that the two of them were involved in a common law marriage, even though New York does not recognize this arrangement. This legal battle has left Mr. Doyle confused over those he once considered extended family.
See Sarah Maslin Nir, A Brownstone and the Bitter Fight to Inherit It, NY Times, October 23, 2016.
Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Oftentimes, companies provide 401(k) retirement plans for their employees, including a mix of prudent investment options. Millions of Americans—like public school teachers and clergy members—however, are not offered these plans, forcing them to rely of 403(b) plans. Ironically, the people who do the most good get the worst retirement plans. 403(b) plans carry excessive investment fees that can cost the owner tens of thousands of dollars or more. Further, these accounts are not subject to the more stringent rules and consumer protections that the average 401(k) plan is. This Article details several stories of public schools teacher’s fight to retire efficiently.
See Tara Siegel Bernard, Think Your Retirement Plan Is Bad? Talk to a Teacher, NY Times, October 21, 2016.
Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.
Ben Jakubowicz recently published an Article entitled, What the HECM Is a Reverse Mortgage: The Importance of the Home Equity Conversion Mortgage in an Aging America, 54 U. Louisville L. Rev. 183 (2016). Provided below is a summary of the Article:
In short, the HECM program in its current state does not adequately protect the interests of senior homeowners. Before addressing the cost and default issues, it is first necessary to acquire a thorough understanding of the HECM framework. Section I provides a brief overview of the demographics of the baby boomer generation and surveys today's lending environment. Next, Section I explains the HECM guidelines before analyzing the direct correlation between costs and default rates.
Section II examines why reverse mortgage borrowers default on their loans and considers the effectiveness of recent legislative enactments aimed at reducing default. Section II goes on to explain the lender's role in the process and ultimately illuminates the conclusion that many of the most problematic aspects of the reverse mortgage program are beyond the reach of the legislature. Section III recognizes that those infirmities are best remedied by removing the profit motive from the HECM market, and discusses the benefits of implementing government-sponsored entities at the mortgage originator level.
Most importantly, this author seeks to reinforce the notion that there must be a pro-active approach to maintaining the HECM program so as to ensure its affordability and sustainability as the American population ages.
Todd Fithian, Albert E. Gibbons, & David W. Holaday recently published an Article entitled, High Performance Teaming and Professional Collaboration, Trusts & Estates (May 2016). Provided below is a summary of the Article:
The National Association of Estate Planners & Councils (NAEPC), formed in 1962, functions with the abiding conviction that: (1) the team approach to estate planning is essential to the creation of an estate plan, to which every consumer is entitled; and (2) this team approach is what best serves the client.
The most essential, defining characteristic of a high performance, multi-disciplinary team is an explicit collaborative process—one that’s articulated to the wealth-holder(s) and to each and every advisor on the team. Over the past several decades, the estate-planning world has become increasingly complex and interdependent. To navigate through this world, it helps if practitioners incorporate collaboration more deliberately into their estate-planning practices.