Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, January 17, 2017

Article on the Role of Trust Protectors

Trust protector2Andrew T. Huber recently published an Article entitled, Trust Protectors: The Role Continues to Evolve, 3 Probate & Property 28 (Jan/Feb 2017). Provided below is an abstract of the Article:

The trust protector’s role is relatively new in modern trusts. Generally, trust protectors provide oversight of certain decisions and allow for a degree of flexibility not easily accommodated by the traditional parties to a trust. Although the trust protector’s role can be very useful, its role is not precisely defined. For attorney-drafters, settlors, and trustees alike, ambiguity in defining the role can be a difficult challenge because statutes among the states are diverse, inconsistent, and, arguably, incomplete. There is a dearth of domestic case law interpreting state statutes, and identifying whether the trust protector is a fiduciary (or not) can be problematic. The purpose of this article is to provide a broad overview of the role and to identify some of the challenges and opportunities inherent with using trust protectors. 


January 17, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Article on Where to Set Up a Domestic Asset Protection Trust

Dapt trustsMark Merric & Daniel G. Worthington recently published an Article entitled, Best DAPT Jurisdictions Based on Three Types of Statutes: Analysis of Where to Set Up a Domestic Asset Protection Trust, Tr. & Est. 92 (Jan. 2017). Provided below is an abstract of the Article:

Sixteen states, or over 30 percent of the states in the United States, now have domestic assets protection trusts (DAPT) statutes. Some commentators thought that DAPT statutes would be limited to less populous states, but Ohio, for example, which is a populous state and one with a major banking center, adopted DAPT legislation. Also, at the time of this writing, both of Michigan’s legislatures passed a DAPT statute, which is waiting for the governor’s signature. This adoption would create the 17th DAPT state. While the history of asset protection trusts (APTs) is fairly recent in the United States beginning with Alaska in 1996, we anticipate that many more jurisdictions will adopt DAPT statutes. 

DAPTs are a powerful tool to help clients legally shield assets from third-party liability, while at the same time permit clients to be discretionary beneficiaries of their own trusts. 

In past articles, we gave one ranking of all the DAPT jurisdictions using the factors from the following two major types of statutes: (1) a discretionary support trust statute; and (2) the DAPT statute, which in many states is known as a “qualified disposition statute.” We’ve now deviated from this approach. We’ve added an anti-alter ego statute, and we’re now separately ranking: (1) the discretionary support trust statute; (2) the anti-alter ego statute; and (3) the DAPT statute.  


January 17, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

How Student Loan Debt Is Plaguing Older Borrowers

Student loan debtNot only does student loan debt affect young to middle-aged adults, it also seems to be affecting a growing number of older Americans. Specifically, the number of Americans age sixty and older with student loan debt has quadrupled in the last decade—from 700,000 in 2005 to 2.8 million in 2015. Oftentimes, these older generations will take out loans to finance their children or grandchildren’s education. These same older Americans also usually carry other types of debt, such as mortgage, credit card, and auto loan debt. Further, carrying the student loan debt can have serious consequences for older adults, including having their Social Security benefits reduced to pay the debt. Older borrowers must certainly consider how educational loans can impact their future.   

See Karen Demasters, Student Loan Debts Plague Older Americans, Financial Advisor, January 16, 2017. 


January 17, 2017 in Current Events, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Trump's Treasury Pick Makes Use of Dynasty Trust

Dynasty trust trumpDonald Trump recently appointed Steven Mnuchin to lead the United States Treasury Department, but is the new appointee taking advantage of a tax loophole? A federal ethics disclosure revealed that Mnuchin placed assets worth $32.9 million into the Steven Mnuchin Dynasty Trust I, allowing him to shield wealth from estate taxes for many generations to come. Only an elite few wealthy families actually need the help of a dynasty trust—those that intend to benefit the generations well beyond their children and grandchildren. The Obama Administration has called for changes to these types of tax loopholes, while Trump is looking to make them virtually useless for planning one’s estate. 

See Zachary R. Mider, Trump’s Treasury Pick May Have Used Tax Loophole Obama Attacked, Financial Advisor, January 12, 2017. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.


January 17, 2017 in Current Events, Estate Planning - Generally, Estate Tax, Trusts | Permalink | Comments (0)

Monday, January 16, 2017

Article on Key State Tax Planning Developments

State taxesSharon L. Klein recently published an Article entitled, The State of the States: 2016—An Update of Key Planning Developments, Tr. & Est. 82 (Jan. 2017). Provided below is an abstract of the Article:

To be more competitive, some jurisdictions with separate estate taxes have been increasing the amount that’s exempt from state estate taxes or even phasing out their estate or inheritance taxes. President-elect Donald J. Trump campaigned on eliminating the federal estate tax. A repeal of the federal estate tax would have a significant trickle-down effect at the state level on a number of issues. In particular, some states peg their estate tax exemption amounts to the federal exemption amount and might need to take specific action to decouple. What happens at the federal level remains to be seen. In the meantime, here’s the latest state-level activity. 


January 16, 2017 in Articles, Estate Planning - Generally, Estate Tax, Gift Tax | Permalink | Comments (0)

Avoiding Financial Turmoil at Death

Estate planning earlyIt is hard enough dealing with the death of a spouse or partner, but it can become even more difficult when taking care of the financial issues of such a loss while grieving. Planning ahead can ease some avoidable financial sorrows. First, couples need to have an understanding of each individual’s assets and where they are located—life insurance policies, retirement plans, and beneficiary designations. Additionally, each partner should set up a durable power of attorney for health care and finances, with competent trustees. It will also be important to maintain openness and communication, so preparing an estate plan while you are healthy will be the best time. Ultimately, the goal is to protect the survivor and enable him or her to make informed decisions about the estate’s assets. 

See John F. Wasik, Death Is Inevitable. Financial Turmoil Afterward Isn’t., N.Y. Times, January 13, 2017. 

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.


January 16, 2017 in Death Event Planning, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Tupac's Tyson Ticket Goes Up for Auction

Tupac ticketTupac Shakur’s ticket stub from the Mike Tyson fight on the night he was killed could now be yours. On September 7, 1996, Tupac attended the Tyson–Bruce Seldon fight at the MGM Grand in Las Vegas. After a first round knockout by Tyson, Tupac left and handed his ticket stub to a man, telling him to enjoy it. The ticket stub was later purchased by a man who verified it was the late rapper’s. Now, the man is looking to sell one of the last items ever touched by Tupac. Goldin Auctions thinks the ticket will fetch at least $25,000.  

See Tupac: Tyson Ticket from Night of Shooting Goes Up for Auction, TMZ, January 14, 2017. 


January 16, 2017 in Current Events, Estate Planning - Generally, Music, Sports | Permalink | Comments (0)

Legal Battle Continues over Peggy Guggenheim's Art Collection

GuggenheimPeggy Guggenheim became known as one of the most influential people of the art world, building one of the greatest collections of modern art—326 paintings and sculptures, known as the Peggy Guggenheim Collection. When she died in 1979, her collection was donated to the Solomon R. Guggenheim Foundation, where the public could view the collection six days a week. However, her collection has been the focus of a bitter legal battle between the Foundation and some of Peggy’s descendants, who claim that the collection has been continuously mismanaged. The Foundation claims that it has faithfully carried out Peggy’s wishes, which is good evidence that the collection should remain right where she left it. The art battle has resulted in four court decisions, all of which were against the descendants. The first suit against the Foundation was filed in a Paris district court in 1992 by three of Peggy’s grandchildren. Since then, three more suits have been filed, with the most recent in 2014, and a later appeal in 2015, when Peggy’s descendants asked the court to revoke the gift of the art collection on the grounds of a breach of conditions. Peggy’s descendants continue to fight and pursue her legacy.   

See Milton Esterow, The Bitter Legal Battle over Peggy Guggenheim’s Blockbuster Art Collection, Vanity Fair, January 5, 2017. 

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.


January 16, 2017 in Current Events, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Sunday, January 15, 2017

United States Organ Transplants Reach Record High

Organ donationFor the fourth year in a row, organ transplants reached a record high last year. In 2016, transplants were up 8.5% from 2015, which is a 19.8% increase since 2012. This growth can mainly be attributed to an increasing number of deceased donors. Approximately 82% of transplants involved organs from deceased donors. This increase is partially due to fewer disqualifications of deceased donations throughout the years—now, professionals, using their best judgment, evaluate the safety of each donated organ. Nearly 120,000 people are currently waiting for a life-saving organ in the United States.

See Susan Scutti, US Organ Transplants Increased Nearly 20% in Five Years, CNN, January 9, 2017. 


January 15, 2017 in Current Events, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Princess Leia Will Not Be Digitally Recreated Posthumous

Princess leiaRest assured Star Wars fans, Lucasfilm, the movie’s production company, claims it has no plans to digitally recreate Carrie Fisher’s character, Princess Leia, in upcoming films. This announcement comes shortly after several celebrities became worried about their posthumous portrayals. Further, the company insists that it will always strive to honor Fisher’s legacy and in doing so will not use digital effects.   

See Carrie Fisher: Princess Leia Will Not Go Digital . . . Lucasfilm Promises, TMZ, January 13, 2017. 


January 15, 2017 in Current Events, Estate Planning - Generally, Film, Technology | Permalink | Comments (0)