Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Thursday, July 10, 2014

New Publication on Trust Protectors

Trust protectors

Juris Publishing will soon publish a book entitled, Trust Protectors: A Practice Manual with Forms by Alexander A. Bove, Jr., which will be available in August 2014.  Provided below is a description of the book:

The trust protector is generally regarded as a relatively new position in trust law, and the key feature of the position is that the protector may be granted powers over the trust, which are generally superior to those of the trustee. This places the protector in a position where, by the exercise of his powers, he can cause the trust to adjust to unforeseen changes or new conditions without the need for court action or beneficiary approval. This work takes the firm position that, with only limited exception, the role of the protector is a fiduciary one, imposing on the protector a duty to act in the best interests of the purposes of the trust and the beneficiaries.

Unfortunately, a substantial segment of the legal community, as well as the legislative bodies of a number of international jurisdictions, have taken a position that the protector is not a fiduciary, or that he may be declared in the trust not to be a fiduciary, and that the power granted him under the trust may be declared to be personal powers, whether or not such is the case, and thus he would have no liability for his actions or inactions while serving as protector. This “attraction” of providing total exculpation of the protector has effectively engendered a quick acceptance of the position by the bulk of the legal community and even by the legislatures of a number of jurisdictions, though almost totally unsupported by relevant case law. As a result, we have been seeing trusts which incorporate the use of a protector having the power to make critical dispositive and administrative decisions, as well as extensive modifications to the trusts without being exposed to liability for negligence or bad decisions which result in damages.

This work will examine in detail the role of the protector of the trust, the relationship between the protector and the trustee, between the protector and the beneficiaries, and the protector’s responsibilities to the purposes of the trust. It will demonstrate with legal support that the role of the protector is not a new role, that, in fact, the protector is simply a new name for the decades-old position of trust “advisor,” and that the trust advisor is consistently regarded as a fiduciary in relevant treatises and has been repeatedly held to be a fiduciary in relevant cases. The discussion will also review and analyze the historical issues and professional commentary relevant to trust law and the role of protector, as well as case decisions in various international jurisdictions which have shed light on the issues and some of the positions taken in the statutes of a number of jurisdictions in the United States and across the world. All legal aspects of the role will be examined, including the rights of the protector, the protector’s relationship to the trustee, and the courts’ regard for and treatment of the position. Further, the work will discuss in detail all of the practical considerations in using a protector, such as selection and special drafting considerations, the use of a protector in a foundation, and, in brief, the numerous tax issues that may apply. The conclusion will be that with only very limited exception, which will be explained, the protector is unquestionably a fiduciary, and just as a trustee, he should be held to fiduciary standards.

July 10, 2014 in Books, Books - For Practitioners, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Friday, June 13, 2014

New Book: Flexible Trusts and Estates for Uncertain Times

Flexible trusts

ABA publishing has released a new book entitled, Flexible Trusts and Estates for Uncertain Times, Fifth Edition. Provided below is a brief synopsis of the book:

In Flexible Trusts and Estates for Uncertain Times, Fifth Edition, Jerry Horn defines estate planning objectives, describes the climate of uncertainty, identifies planning problems, and suggests solutions. The completely updated fifth edition confronts a purported lull after a period of unprecedented instability and now covers the latest updates in the tax code. In addition to these updates, you'll find complete, up-to-date information on a wealth of day-to-day situations including how to:

  • Facilitate increases in income tax bases.
  • Rearrange ownership of assets to permit use of exemptions.
  • Maximize flexibility in selection and succession of trustees.
  • Apportion death costs consistently with tax efficiency and preservation of preferred assets, and much, much more.

With more than 155 sample forms (and many alternative variables) and 19 complete documents including wills, revocable trusts, trust and estates law documents, irrevocable trusts, powers of attorney for property management and for health care and beneficiary designations, this one-of-a-kind guide will be an indispensable asset to any trust and estates lawyer.

June 13, 2014 in Books, Books - For Practitioners, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, May 1, 2014

Book on International Estate Planning

International Estate Planning Barbara Hauser recently published a book entitled, International Estate Planning: A Reference Guide, (August 2013).  Provided below is a description of the book found on the Juris Publishing, Inc. Web Store:

International Estate Planning is a practical and authoritative guide to a tremendously complex field. It provides indispensable information to lawyers, accountants, and other practitioners who work on estate planning with clients who have issues involving other countries. The book is divided into two main parts: Part One addresses the tax issues; Part Two addresses the non-tax issues. The focus of the book is on estate planning to avoid wealth transfer taxes with references to income taxes.

Topics include clients who may:
• Own homes outside the U.S.
• Have children or parents who live in other countries
• Have a spouse who is not a citizen
• Work for a multinational corporation in an office abroad
• Be “foreigners” who have investments in the United States 

May 1, 2014 in Books, Books - For Practitioners, Estate Planning - Generally, Travel | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 26, 2014

Book on Elder Law Ethics

5430614_big

Roberta K. Flowers & Rebecca C. Morgan recently published an article entitled, Ethics in the Practice of Elder Law, sponsored by the Section of Real Property, Trust and Estate Law.  Provided below is a synopsis of the book:

In an elder law practice, ethical issues can occur at any point in the representation, and in some cases these unexpected situations can take the attorney by surprise. Ethics in the Practice of Elder Law provides an informed overview of the most common issues that can occur, explains the issues that can arise and how to be alert for them, and suggest ways to work through these issues effectively and ethically.

Authors Roberta K. Flowers and Rebecca C. Morgan offer a range of hypothetical situations, along with a series opening questions for each, followed by a discussion suggestions for analyzing and responding to the issue. These discussions offer a reliable framework for analyzing the ethical questions within the scope of the Model Rules and ancillary resources.

The authors give readers the knowledge to determine which questions to ask in the representaiton. They refer to and discuss the 9 "C_s" of elder law ethics: Competency, Client, Confidentiality, Conflicts of interest, Capacity, Control, Complex fiduciary representation, and Consulting.

Ethics in the Practice of Elder Law provides invaluable information as appendices, including the National Academy of Elder Law (NAELA) Aspirational Standards, relevant ABA ethics opinions, and a range of supplemental resources, checklists, and letters.

March 26, 2014 in Books, Books - For Practitioners, Elder Law, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

"COVERING YOUR ASSets" -- New book on wealth preservation and asset protection released

CYA CoverLeonard Critcher (author, speaker, trainer, and columnist with over four decades of experience in the financial service industry) has recently published his book entitled COVERING YOUR ASSets.

Here is a description of the book:

COVERING YOUR ASSets is not about how to accumulate wealth.  It is written specifically for people who have already accumulated assets and wish to preserve and protect those assets.  It is written in a unique format that will allow you to isolate your specific life situation and read only material applicable to you. 

In the first of five sections you will learn about the building blocks of the Wealth Planning process, the Thirteen Wealth Management Issues and how their integration is crucial to an effective plan, and how to build a Wealth Planning Team. 

In the second section you can learn about “Terms, Terminologies and Other Confusing Things Meant to Impress You” and sound like a well-informed person of wealth when talking with your attorney, CPA, planner or just some know-it-all at a cocktail party.  

The third section is where you can hone in on your life situation, read a discussion of specific issues associated with where you are in life and then reference specific planning strategies and techniques covered in the fourth section.  Your quest for asset preservation and protection will begin by first finding the broad category you fall into.  The refinement process will bring you to a specific rendering of your current situation..

The 27 strategies in the fourth section are explained in simple terms and are easily understood by the layman.

The last section is a wrap-up of specific thoughts of the author that will be helpful in making what can be a daunting task much easier.

March 24, 2014 in Books - For Practitioners | Permalink | Comments (0) | TrackBack (0)

Book on the Fundamentals of Trust Accounting Income and Principal Rules

Book FOTAIPSeymour Goldberg recently published a book entitled, Fudamentals of Trust Accounting Income and Principal Rules, (February 2014).  Provided below is a description of the book found on the American Bar Association Web Store:

If you are one of the 10,000 New York attorneys involved in trust drafting, tax planning, estate planning, trust accounting, trust litigation or elder law planning, you need this book. Here's the user manual on the trust accounting income and principal rules that you've been looking for, written from a practical application standpoint. It's doubly applicable to any lawyers who drafts trust documents. In it you'll find full guidance on:

  • The Uniform Principal and Income Act (UPAIA)
  • The power to adjust (PTA) and the unitrust conversion

Any practitioner who is involved in trust drafting or trust litigation, or who prepares fiduciary income tax returns or trust accountings, must become aware of these revised trust rules in order to avoid potential malpractice and/or ethics issues. If you're involved in trust drafting in New York State, this is an essential addition to your library.

March 24, 2014 in Books, Books - For Practitioners, Books - For the Classroom, Trusts | Permalink | Comments (0) | TrackBack (0)

Friday, March 7, 2014

Texas Probate System

Probate-3d-binder-web

You can now preorder Texas Probate System (4th ed.), edited by James E. Brill and Russell W. Hall.  Provided below is the description from Texas Bar Books:

The new 4th edition of the Texas Probate System is based on the new Texas Estates Code, which superseded the Texas Probate Code effective January 1, 2014. In the new Estates Code, sections of the Probate Code relating to decedents have been substantially reorganized and renumbered.

The new edition of the Texas Probate System—

  • incorporates new Estates Code citations, terminology, and statutory requirements, including changes from the most recent legislative session
  • adds procedures, including necessary forms and letters, for implementing independent administration by agreement in both testate and intestate estates.

The Texas Probate System will become the cornerstone of your probate law practice. From the initial contact with a client to the closing of the estate, this System will be in constant use, providing a step-by-step guide to the efficient handling of a decedent’s estate.

The Texas Probate System includes:

  • Letters of a standard, routine, and repetitive nature
  • Forms to be prepared for court proceedings
  • Worksheets designed to guide you through proper decisions, to make calculations, or to maintain a single summary record of multiple related transactions
  • Significant Date List to assist you in calculating and recording important dates for all proceedings
  • Checkplan containing a checklist of all activities to be considered and performed in handling a decedent’s estate.

 

March 7, 2014 in Books, Books - For Practitioners | Permalink | Comments (1) | TrackBack (0)

Sunday, February 23, 2014

The Advisor's Guide to Long-Term Care

5430625_big

The ABA Section of Real Property, Trust and Estate Law recently published a book entitled, The Advisor’s Guide to Long-Term Care, edited by R. David Watros and Erik T. Reynolds.  Provided below is a description of this book:

Waiting to address long-term care needs until the point one actually needs care is too late, as it significantly impacts a client's financial situation, quality of life of their loved ones, and their ability to maintain their independence. Incorporating long-term care insurance into the financial plan can ultimately help protect assets reduce the burden of care that would otherwise fall on family members, and enable the client to receive care in the setting they most prefer, including their home. The Advisor's Guide to Long-Term Care looks at the full range of the topic, explaining how to best use it in the estate plan as a prudent risk-management choice. 

Statistics point to the high probability that people are likely to need extended health care at some point in their life. The Advisor's Guide to Long-Term Care is intended to help estate planners and advisors to address these issues with their clients, establishing the issues and trends for care and covering all relevant issues involved in the funding and planning for this insurance. This helps the advisor establish a plan that will place the family back to where they were emotionally, physically, and financially, as best as possible prior to a long-term care event occurring.

Starting with the funding of long term care, one of the most essential important factors to consider, the authors clearly explain the different options for self-funding, governmental programs such as Medicare, Medicaid, veteran_s benefits, and the Federal Long-Term care insurance program, as well as other funding considerations. Tables and figures make the details involved in these choices clear and accessible.

Subsequent chapters examine key issues in long-term care insurance, legislation that has affected the insurance, such as HIPAA and the PPA, taxation, and issues to consider in selecting a long-term care insurance company. The authors consider using long-term care for estate planning and wealth preservation and a discussion of employer's options and benefits in establishing long-term care coverage for their employees.

February 23, 2014 in Books - For Practitioners, Disability Planning - Health Care | Permalink | Comments (0) | TrackBack (0)

Friday, February 21, 2014

Book on Community Property

Community propertyCharlotte Goldberg recently published a book entitled, Community Property, (August 2013).  Provided below is a description of the book from Aspen Law:

With a unique, comparative approach and a problem-based pedagogy, Community Property helps students grasp the different ways each community property state address issues. The book follows a hypothetical couple, presenting issues such as premarital agreements, separate property business, divorce, and the like, and shows how each of the nine community property states would analyze the problem with statutes and representative cases. Interesting, accessible, contemporary cases illustrate important principles, and helpful charts in every chapter summarize how each community property state treats the concepts. Author Charlotte Goldberg has over thirty years of teaching experience and writing expertise; she is the author of the successful Examples & Explanations: California Community Property, as well as numerous law review articles on family law and marital property. Community Property’s manageable length makes it perfect for two-credit courses. Well-crafted Problems and Discussion Questions help students test their knowledge and facilitate class discussion, and a comprehensive Teachers Manual includes answers to questions and problems as well as teaching suggestions.

February 21, 2014 in Books, Books - For Practitioners, Books - For the Classroom, New Cases, New Legislation, Teaching | Permalink | Comments (0) | TrackBack (0)

Sunday, February 16, 2014

Book on Estate Taxes

DTI2014large-197x300

E. Michael Kilbourn recently published a new book entitled, Disinherit the IRS.  Provided below is a description of this book:

Did You Know: You are worth only 60 percent of what you think you are worth. And because a little over 55 percent of Americans died last year without a will, families will lose roughly $1 trillion if they don’t disinherit the IRS.

Estate tax rates start at 40 percent (on estates over $5 million) and are indexed for inflation each year. And they are due within 9 months after you leave this world.

E. Michael Kilbourn shows you how to protect what it took you a lifetime to build and how to avoid the havoc estate taxes would reap on your loved ones. Mike will show you that death is not a taxable offense!

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

February 16, 2014 in Books - For Practitioners, Estate Tax | Permalink | Comments (0) | TrackBack (0)