Wills, Trusts & Estates Prof Blog

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

Saturday, December 10, 2016

Article on Non-Charitable Purpose Trusts

Non charitable trustsRichard C. Ausness recently published an Article entitled, Non-Charitable Purpose Trusts: Past, Present, and Future, U. Oslo Faculty of Law Research (2016). Provided below is an abstract of the Article:

This Article focuses on non-charitable purpose trusts and how they enable estate planners to better carry out their clients’ objectives. Specifically, it explores the history of non-charitable purpose trusts and summarizes the differences between private trusts, charitable trusts, and non-charitable purpose trusts. This Article also examines the treatment of non-charitable purpose trusts in England and the United States prior to the promulgation of the Restatement of Trusts in 1935. This Article surveys the recent adoption of non-charitable purpose trust provisions in the Uniform Trust Code and various Restatements and gives advice on drafting the trust instruments. Lastly, this Article concludes with suggested revisions to the Uniform Trust Code.

December 10, 2016 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Case Summary on Attestation of a Will

AttestationATTESTATION: Witnesses’ signatures on loose page did not prevent finding of due execution. The decedent’s will consisted of six loose pages, numbered consecutively with a running footer declaring the pages to be 1 of 6, 2 of 6 and so on. The font and typeface were consistent from one page to the next and the document consisted of 11 consecutively numbered paragraphs. The decedent signed at the foot of page 5 and the witnesses’ signatures appear on page 6. Page 5 ends with “an inarticulate sentence fragment” which does not connect grammatically with the first sentence of page 6. The rest of the text on page 6 is not a complete attestation clause because it omits to state that the witnesses signed in the presence of the testator. Nevertheless, the Maryland Court of Special Appeals held that in these circumstances the witnesses signatures were part of the will and the presumption of due execution applied. Castruccio v. Estate of Castruccio, No. 1665, 2016 WL 5462966 (Md. Ct. Spec. App. Sept. 29, 2016).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

December 10, 2016 in Current Events, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Friday, December 9, 2016

Case Summary on Estate Property in Foreign Jurisdiction

English probateANCILLARY PROBATE: Local court has no jurisdiction over estate property remitted from foreign jurisdiction.  The decedent resided abroad for many decades but never relinquished U.S. citizenship. After her death in London, England, where she had resided for many years, administration was opened in an Alabama court, arguably the state of her domicile and where personal property belonging to the estate was located. Subsequently her will was offered for probate in London. The will made no provisions for the decedent’s sole heir, a sister. The administrator, decedent’s nephew, then retained an English firm to represent him in the English probate. The administrator and the executor settled all outstanding issues except for a dispute between the administrator and his English solicitors over their charges. As part of his efforts to secure indemnification from the estate for sums owed to the solicitors, the administrator secured an order from the Alabama court ordering beneficiaries of the will who reside in Alabama to deposit into escrow any distributions received from the English administration. One beneficiary sought a writ of mandamus from the Alabama Supreme Court vacating the escrow order.  The court granted the writ, holding that the local probate court has no jurisdiction over the property subject to the English administration. Ex parte Scott, No. 1140645, 2016 WL 6310771 (Ala. Oct. 28, 2016).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.

December 9, 2016 in Current Events, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Estate Planning After Divorce and Remarriage

ProtectionDuring the challenges of divorce and the excitement of remarriage, you must remember to keep track of some nonromantic realities. After your divorce, it will be important to write a new will, even if you intend to leave inheritances to your ex-husband or stepchildren. Further, after your divorce, you will want to update your beneficiaries for your retirement accounts and life insurance policies. Several states have laws that automatically delete your ex-spouse’s name from these accounts. Also, if you want your new spouse to have some legal authority over your children, you will need to take the steps necessary to make sure these rights are granted.

See Naomi Cahn, Protect Those You Love in Divorce, and Remarriage, Splitopia, October 5, 2016.

December 9, 2016 in Estate Planning - Generally, Wills | Permalink | Comments (0)

A New App That Ages Your Face

AgingboothDo you want to see how you will look when you are old? AgingBooth is a new app that uses your pictures and instantly ages your face. This face aging machine can be downloaded to your iPhone or iPod Touch and used on your family, friends, or colleagues. Are you ready to face your future?

See AgingBooth, Pivi & Co.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this app to my attention.  

December 9, 2016 in Current Events, Elder Law, Humor, Technology | Permalink | Comments (0)

The Special Needs Trust Fairness Act Has Passed

Special needs trustFirst Party Special Needs Trusts are established under 42 U.S.C. § 1396p(d)(4)(A). The prior federal statute only allowed the trusts to be set up by a disabled individual’s family member, not the person with the disability. The law presumed that individuals with disabilities lacked the mental capacity to establish a trust. The Special Needs Trust Fairness Act has now passed the House and Senate. This Act will allow a disabled individual to establish his or her own special needs trust. The President is expected to sign the bill soon.

See It Passed!: The Special Needs Trust Fairness Act Has Passed Both the House and the Senate and Is on Its Way to the President for Signature, The Interactive Legal Team, December 7, 2016.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

December 9, 2016 in Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Thursday, December 8, 2016

U.S. Death Rate Rises Due to Heart Disease

Heart disease is taking American lives at a fast rate, stalling forty years of gains and driving up the United States mortality rate. Since 1969, death rates from heart disease have declined by almost 70%. Last year, the death rate from heart disease rose 0.9%, which began the upward trajectory. Most worry that this increase reflects an almost three-decade-long obesity epidemic.

See Nation’s Death Rate Rises as Progress Against Heart Disease Stalls, Fox News, December 8, 2016.

December 8, 2016 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

Workshop of Inheritance Practices in the 20th Century

CLEThe German Historical Institute is holding a workshop entitled, Inheritance Practices in the 20th Century, which will tentatively take place September 14–16, 2017, at the German Historical Institute in Washington, D.C. Provided below is a description of the event:

By examining inheritance practices, the workshop aims to provide new insights into the structure and meaning of personal networks (like family and kinship relations) in the twentieth century. The workshop’s focus on inherited property is also intended to shed new light on continuities and discontinuities in social inequality in families and in societies. Finally, the workshop will explore the interdependence between public, social, and economic welfare structures, on the one hand, and private family and kinship networks, on the other hand, in the modern age.

Download CfP Inheritance practices in the 20th century

December 8, 2016 in Conferences & CLE, Estate Planning - Generally | Permalink | Comments (0)

The Tax Change Agenda

Trump tax planWith Donald Trump and a Republican Congress, it is likely we will see lower tax rates and a broader taxable income base. Republicans will, however, need to compromise on some core objectives. This Article provides the “Potential Tax Change Timeline” to some expected bills, debates, and legislation. Additionally, there is a “ Tax Change Watchlist” organized into three categories—individual income tax, corporate and pass-through income tax, and transfer tax—giving insight into the major changes detailed in Trump’s proposals.

See J.P. Morgan Advice Lab, The Tax Change Agenda: What’s Been Proposed—and Our Insights into What That May Mean for You, J.P. Morgan Private Bank (2016).

December 8, 2016 in Current Events, Estate Planning - Generally, Estate Tax, Income Tax, New Legislation | Permalink | Comments (0)

Article on Future of Federal Estate Tax

Estate tax3Kevin T. Keen recently published an Article entitled, The Only Thing Is Uncertainty: The Future of Estate Planning Without the Federal Estate Tax, 51 Real Prop. Tr. & Est. L.J. 129 (2016). Provided below is a synopsis of the Article:

Given the current political environment, the possibility of a federal estate tax repeal has seemingly become more likely. The effect of a possible near-term repeal of the federal estate tax creates further uncertainty in a field that is constantly evolving. This uncertainty is nothing new. However, taking into consideration the substantial and cascading changes of the American Taxpayer Relief Act of 2012, focusing on current proposed legislation to repeal the estate tax is important to present estate planning efforts. With the 2016 presidential election looming on the horizon, it is not unrealistic to foresee significant changes to the existing income and transfer tax regime ahead.

This Article discusses the current happenings with respect to the most recent efforts to repeal the federal estate tax, offers a glimpse into the possible consequences to the federal income and wealth transfer taxes as a result of such repeal, and explores what considerations may drive future estate planning should one of two circumstances involving a repeal of the estate tax materialize. It behooves the estate planner to consider these potential outcomes and leverage the uncertainty in planning. In any case, income tax considerations will continue to have an increasingly meaningful role in sophisticated estate planning, regardless of the uncertainty that lies ahead.

December 8, 2016 in Articles, Current Events, Estate Planning - Generally, Estate Tax | Permalink | Comments (0)