Wills, Trusts & Estates Prof Blog

Coordinating the Retirement and Estate Plan

Planning for Estates is offering a CD set and 66-page manual entitled Financial Planning After Retirement: Coordinating the Retirement Plan with the Estate Plan, based on a recent CLE teleconference. A summary of the available materials is below:

A wrong determination of whether a trust qualifies as a designated beneficiary of retirement benefits can cost the owner decades of tax deferral as well as 50 percent excise tax penalties. Learn how to provide the best asset protection and estate planning benefits for large retirement plans so that the valuable “stretch out” does not become a “blow out.” Most trusts are inadequately drafted to handle retirement plans, especially in light of the recent changes of the Pension Protection Act. New preparer penalties put an additional premium on determining whether the trust is likely to qualify. This teleconference will help you understand which trusts qualify and which do not, and how to ensure they do. It also discusses two alternatives to owner control that are often overlooked – the trusteed IRA and the IRA annuity. Comparison charts and decision trees will assist you to understand and communicate these options to clients in the clearest possible manner.

Practice Manual Provides Clauses for Texas Trusts

N. Dean Hawkins (attorney) has published his book & CD entitled Texas Trust Clauses (James Publishing).  The book is described as follows:

A deep and ready reservoir of pattern trust clauses can help the estate planner provide a comprehensive document, address changing circumstances, and adeptly handle novel situations.  

N. Dean Hawkins shares 180 clauses in Texas Trusts & Clauses.  His are annotated with usage recommendations, tax consequences, recent case law, and drafting issues.

Special thanks to Patrick S. Sylvester (Attorney & Counselor at Law, Sylvester Law Firm, PC) for bringing this article to my attention.

When Bankruptcy and Probate Collide

Lorman Education Services is offering a CD set or podcast and manual of a teleconference entitled When Worlds Collide - Bankruptcy and Probate.  A description of the teleconference is below:

Until the U. S. Supreme Court's 2006 decision in Marshall v. Marshall, 547 U.S. 293 (2006), there was a common belief among many bankruptcy and probate practitioners that the so-called probate exception to federal jurisdiction served to prevent bankruptcy courts from adjudicating any matters that were related, even only slightly, to a probate estate. In giving a very narrow interpretation to the probate exception to federal jurisdiction within the context of bankruptcy jurisdiction, the Supreme Court's ruling in Marshall clearly grants bankruptcy courts with the authority to adjudicate matters that could have an impact on probate proceedings. This teleconference will help you (a) analyze and determine what issues a bankruptcy court may adjudicate notwithstanding the possible effect on a probate estate, (b) analyze and determine when a bankruptcy court must abstain and when it may abstain from adjudicating issues that have an impact on a probate estate, (c) know what effect the death of a debtor while a bankruptcy proceeding pending has on that proceeding, (d) understand how the Bankruptcy Code's automatic stay provisions affect a probate proceeding and (e) when a disclaimer by a beneficiary of a testamentary bequest or devise, an intestate inheritance or a nontestamentary disposition may or may not be set aside in the beneficiary's bankruptcy proceeding.  

Examining Legal-Moral Problems

Beard Books has reprinted Norman St. John-Stevas' book entitled Life, Death and the Law: Law and Christian Morals in England and the United States (Beard Books 2001/12) (1961).  A description of the book is below:

After formulating some general principles governing the relationship between Christian morality and the law in England and the United States, particular controversial legal-moral problems are examined. These important subjects, still at the forefront today, include the control of conception, artificial insemination, human sterilization, homosexuality, suicide and euthanasia. The role that the state and the church should play in the formulation of legal policy is suggested.

Fulfilling Trustee's Investment Duties

Christopher P. Kline (wealth management director) has recently published his book entitled The Law of Trustee Investments (ABA 2009). 

The following is a summary of the book:

This book takes a very practical approach to the question that should be asked by every trustee, especially non-professional trustees: How do I fulfill my fiduciary duties to the trust beneficiaries (and thereby avoid liability for failure to do so) in determining how to invest the trust assets?The book begins with an in-depth introduction to investment basics, examines such issues as the law of diversification and the prudent investor act standard, explores how to determine breach and damages, and explains the effects of principal and income acts on investing. It concludes by addressing the drafting of an investment plan by the trustee, a key topic because under the UPIA a fiduciary is judged not on his or her actual investment performance, but rather on the appropriateness of the investment plan. This chapter provides practical guidelines for newly-appointed trustees on how to develop such a plan, including specific comments directed to life insurance trusts, where a life insurance policy is usually the primary investment. Appendices offer sample trust investment language and an investment plan flow chart.

Book Review: Estate Taxation

Ronald H. Jensen (Professor of Law, Pace University) has recently posted on SSRN a Review of Federal Income Taxation of Estates and Beneficiaries, 20 Buff. L. Rev. (forthcoming).

Here is the abstract of the review:

Review of Federal Income Taxation of Estates and Beneficiaries by M. Carr Ferguson, James L. Freeland, and Richard B. Stephens. This comprehensive volume should help fill a void which tax practitioners have long endured. As the authors properly point out, though many volumes have been written on estate taxation and estate planning, relatively little attention has been given to the income tax consequences resulting from death. The present volume is a welcome and needed addition to the sparse body of literature on this subject.

Luther Burbank

According to Wikipedia, "Luther Burbank (7 March 1849 – 11 April 1926) was an American botanist, horticulturist and a pioneer in agricultural science. He developed more than 800 strains and varieties of plants over his 55-year career. Burbank's varied creations included fruits, flowers, grains, grasses, and vegetables."  Just before he died, he is reported as uttering the phrase, "I don't feel good."

A book released in April 2009 by Jane S. Smith, The Garden of Invention: Luther Burbank and the Business of Breeding Plants, provides a detailed examination of Luther's life.  The book also includes a discussion about the problems associated with his estate.

For a review of this book, see Janet Maslin, The Curious Man Lucky Enough to Create ‘the Lucky Spud’, NY Times, May 4, 2009.

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

New form book published

The American Bar Association has recently published a book entitled Estate Planning Forms authored by L. Rush Hunt (Madisonville, Kentucky).

Here is a description of this book:

An estate plan can have several elements--a will; an assignment of power of attorney; a living will or healthcare proxy; and in some cases, a trust. As an estate planner, you must be mindful of both federal and state laws governing estates when assembling plans for clients. Estate Planning Forms, by L. Rush Hunt, covers all elements of estate planning in detail with easy-to-follow, time-saving forms.

This book empowers attorneys to establish trusts to reduce estate and gift taxes and to distribute assets to the heirs without the costs, delays, and publicity of probate court. The primary purpose of Estate Planning Forms is to ensure that the greatest amount of the estate passes to the estate owner's intended beneficiaries. With the guidance in this book, you will be able to offer greater protection of your client's assets from creditors and lawsuits.

Includes the following forms:

• Letters of engagement
• Privacy notices
• Powers of attorney
• Wills
• Pre and Post-marital agreements
• Trusts

"A Parent's Guide to Wills & Trusts"

Don Silver has recently authored the second edition of his book entitled A Parent's Guide to Wills & Trusts (For Grandparents, Too).

Here is an excerpt from the publisher's description of this book:

A Parent's Guide to Wills & Trusts is unique. The book uses an easy-to-understand question-and-answer format with real-life scenarios to show how advance planning can avoid problems and save money. It is not a do-it-yourself book. * * *

"Terrific...This book would make a great gift for clients." - The CPA Journal

“Comprehensive…recommend it to any client who needs a living trust…The book includes a comprehensive list and explanation of special situations… The book contains excellent material on issues that are not in the law books or tax codes.” - Colorado State Bar - The Colorado Lawyer Magazine

“This is a book I highly recommend. I recommend it to attorneys to consider as something to give to clients and potential clients. I recommend it to people who are planning to meet with their estate planning attorneys and to people who are thinking about finding an attorney to help them with their estate plans. I recommend it to people who don't think they need a will or any estate planning advice because after reading this book, they will become people who are thinking about finding an attorney to help them with their estate plans.” - Prof. James Edward Maule, Villanova University School of Law

"I highly recommend A Parent's Guide to Wills & Trusts (2nd ed.). As an estate planning attorney practicing in California, I'm always on the lookout for good reference resources for my clients who want to do some homework on their own. This book covers a wide range of issues. But the book's breadth does not come at the expense of substance: the author provides accurate information and solid advice in a highly readable way. Although not a substitute for working with a professional to prepare your estate plan, this book can help you get the most out of your relationship with your attorney and other advisors." - Jeff Holman, Kaye Holman Law Group

Where should older or disabled persons live?

Lawrence A. Frolik (Professor of Law, University of Pittsburgh School of Law) has recently published his book entitled Residence Options for Older and Disabled Clients.

Here is a description of this book:

With the recent census figures reporting that more than 35 million Americans are age 65 and older and the expected prolonged life expectancy, the need for appropriate housing is inevitable. Residence Options for Older and Disabled Clients is a new book that provides comprehensive guidance on the many different types of housing available for aging and disabled individuals. It starts with the most independent type of living, proceeds through transitional forms of housing and ends with an in-depth discussion of medically-assisted housing.

It is crucial for attorneys of aging and disabled clients to be adequately informed about various housing options as there are many legal consequences involved with selling their existing home and joining a heavily-regulated, planned community. Attorneys have the opportunity to offer their clients important practical advice about age restricted housing and deed restrictions and thereby steer them away from potential problems. This guide provides you with guidance and answers critical questions to help you counsel your clients.

Housing options include:

• Condominiums and cooperatives
• Planned communities and homeowner associations
• Continuing care retirement communities 
• Assisted living
• Group homes for the disabled
• Nursing homes
• Hospice care
• And much more.

Whether you’re a lawyer, financial planner, geriatric case manager or a caregiver, this book will expand your knowledge of the various types of housing and offers you assistance in selecting the most appropriate place for an individual’s specific needs.

Prof. James' Alzheimer's book lauded

Vaughn E. James (Professor of Law, Texas Tech University School of Law) recently published book entitled The Alzheimer's Advisor -- A Caregiver's Guide to Dealing with the Tough Legal and Practical Issues has been chosen among the best two dozen consumer health titles of 2008 by the Library Journal.  See Barbara Bibel, Best Consumer Health 2008, LibraryJournal.com, Feb. 1, 2009.

Here is the publisher's description of this book:

For anyone who has ever cared for a person with Alzheimer’s, coping with the emotional, financial, and day-to-day issues can be grueling. While many people are aware of the physical effects of this disease, very few know how to handle the practical issues that can make dealing with a loved one or patient with Alzheimer’s that much more difficult. In The Alzheimer's Advisor, Vaughn E. James offers an empathetic and straightforward guide to the legal and ethical dilemmas associated with this disorder. Using real-life situations, the author offers invaluable advice on such topics as:

• estate planning
• the emotional issues of caring for a patient with Alzheimer’s
• how to cope with the cost of care
• living wills, power of attorney, and guardian­­ship
• treatment and diagnosis
• finding the right lawyer and paying for the cost of legal help
• legal issues for the mobile Alzheimer’s patient

From recognizing the early signs of the disease to understanding the legal implications, this is the one book that will enable caregivers, health-care practitioners, and family members to protect themselves and their loved ones.

How do you know if an older person lacks capacity?

The American Bar Association (ABA) Commission on Law and Aging and the American Psychological Association have prepared a booklet entitled Assessment of Older Adults With Diminished Capacity: A Handbook for Lawyers.

The Executive Summary explains that

With the coming demographic avalanche of Boomers reaching their 60s and the over-80 population swelling, lawyers face a growing challenge: older clients with problems in decision-making capacity. While most older adults will not have impaired capacity, some will. Clear and relatively obvious dementias will impair capacity, and the prevalence of such dementias increases with age. But what about older adults with an early stage of dementia or with mild central nervous system damage? Such clients may have subtle decisional problems and questionable judgments troubling to a lawyer. This handbook offers a conceptual framework and practice tips for addressing problems of client capacity, in some cases with help from a clinician.

2009 Edition of "Loring: A Trustee's Handbook" Released

Charles E. Rounds, Jr. (Professor, Suffolk University Law School) and Charles E. Rounds, III (Associate, David W. Kirch, P.C., Aurora, Colorado) have recently published the 2009 edition of Loring: A Trustee's Handbook.

Here is the publisher's description of this book:

Loring: A Trustee's Handbook is regarded as the most convenient, reliable, and complete source for trust advice. Get in-depth information on how to stay on top of the developments in this complex field of practice.

Loring: A Trustee's Handbook brings you up to date on the latest cases, statutes, and developments such as:

• The Trustee's Liabilities, including discussion of the standing to seek judicial relief for a breach of trust
• Defenses to breach of trust claims
• Damages, penalties and denial of compensation for costs and fees
• Special Types of Trusts including exploration of the Quitclose Trust and the Private Sector Blind Trust
• Examination of the Supreme Court's decisions in cases such as Brown v. Legal Foundation of Washington and U.S. v. White Mountain Apache

New Treatise Combines Elder Law Basics and Financial Planning Strategies

Jerry Hyman has published a new book entitled Elder Law and Financial Strategies: Planning for Later Life. This book combines a study of elder law and financial planning. The treatise covers the major aspects of an elder law practice, while explaining important financial and tax consequences.

Elder Law Answers has more.

Computerization for trust and estate attorneys

Donald H. Kelley has recently published his book entitled The Electronic Practice.

Here is the publisher's description of the book:

For attorneys, acountants, financial planners, life insurance underwriters, financial planners and charitable organization professionals in the trust and estates field. Expand your ability to use computers in practical day-to-day applications! Learn about efficient computer usage, computational and drafting softwere and finding information and resources on the internet.

Included are basic "how to" materials on computer technology and internet based research for trusts and estates practitioners.

Get information and tips to ease and enhance your hands on computer experitnce. This book includes numerous and detailed reviews of software and web-based applications needed in the trusts and estates practice, as well as information and checklists to help you evaluate such packages.

The accompanying CDRom (to be periodically updated) installs a file on your computer that makes the entire book instantly available for consultation as you work and links you to websites with specialized resources of value to you as a trusts and estates practitioner. Such linking, in effect, allows this book to serve as a Table of Contents to the riches of the internet. The links extend to computer technology, substantive law and factual resources for the trusts and estates practice.

Macintosh users will benefit from discussions of Mac technology and the file on the acompanying CDRom functions on the Mac (recent OS versions) as well on Windows.

Electronically leverage your time and abilities with instant access to specialized information you need as a trusts and estates practitioner.

Special thanks to Neil Hendershot, editor of the PA Elder, Estate & Fiduciary Law Blog, for bringing this book to my attention.  You may also read his review of the book here.

"Nothing to be Frightened of"

On September 2, 2008, Julian Barnes book Nothing to be Frightened of was released. 

This interesting work provides the author's view of the upcoming certainty of death.  As described on the author's website:

'I don’t believe in God, but I miss him.’ Julian Barnes’ new book is, among many things, a family memoir, an exchange with his brother (a philosopher), a meditation on mortality and the fear of death, a celebration of art, an argument with and about God, and a homage to the French writer Jules Renard. Though he warns us that ‘this is not my autobiography’, the result is like a tour of the mind of one of our most brilliant writers.

For a review of this book in which the writer concludes, "It is a beautiful and funny book, still booming in my head," see Garrison Keillor, Dying of the Light, NY Times, Oct. 5, 2008.

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

Texas Elder Law Treatise Published

Four leading Texas elder law experts, Wesley E. Wright, Molly Dear Abshire, Patricia Flora Sitchler, and H. Clyde Farrell, have recently published their treatise entitled Texas Elder Law as Volume 51 of the Texas Practice Series.

Here is the publisher's description of this treatise:

This book provides an up-to-date, comprehensive resource for Texas elder law practice. Authored by well-known elder law practitioners in Texas, it covers the common issues facing elderly clients, providing explanations of the foundational law and practical guidance and illustrations for addressing those issues, such as Medicaid planning, Social Security and retirement plans, advance directives, Medicare, Medigap insurance, health insurance, long-term care insurance, housing options, and prevention of abuse and neglect.

• Authored by well-respected experts in the field enabling the reader to rely on this authoritative source with confidence
• Offers author comments and practice tips that provide further insight into specific issues, giving attorneys an extra edge
• Provides detailed explanations of Medicaid rules and Medicaid estate recovery rules, providing comprehensive information concerning Medicaid planning issues
• Provides summary and analysis of relevant statutes, regulations, and cases, providing the reader with a quick reference source

Advice for caregivers of individuals with Alzheimer's

Vaughn E. James (Professor of Law, Texas Tech University School of Law) has recently published his book entitled The Alzheimer's Advisor -- A Caregiver's Guide to Dealing with the Tough Legal and Practical Issues.

Here is the publisher's description of this book:

For anyone who has ever cared for a person with Alzheimer’s, coping with the emotional, financial, and day-to-day issues can be grueling. While many people are aware of the physical effects of this disease, very few know how to handle the practical issues that can make dealing with a loved one or patient with Alzheimer’s that much more difficult. In The Alzheimer's Advisor, Vaughn E. James offers an empathetic and straightforward guide to the legal and ethical dilemmas associated with this disorder. Using real-life situations, the author offers invaluable advice on such topics as:

• estate planning
• the emotional issues of caring for a patient with Alzheimer’s
• how to cope with the cost of care
• living wills, power of attorney, and guardian­­ship
• treatment and diagnosis
• finding the right lawyer and paying for the cost of legal help
• legal issues for the mobile Alzheimer’s patient

From recognizing the early signs of the disease to understanding the legal implications, this is the one book that will enable caregivers, health-care practitioners, and family members to protect themselves and their loved ones.

Family Limited Partnership Treatise

David T. Lewis (member, Moore & Van Allen, PLLC, Charlotte, NC) and Andrea C. Chomakos (associate, Moore & Van Allen, PLLC, Charlotte, NC) are the authors of The Family Limited Partnership Deskbook: Forming and Funding FLPs and Other Closely Held Business Entities (2nd ed. 2007).

Here is a description of their book:

This fully revised and updated edition of The Family Limited Partnership Deskbook addresses the need for a current, complete reference source for practitioners who want to understand and comply with both formal and substantive requirements in the creation and administration of FLPs and LLCs. This comprehensive guide provides in-depth analysis of all facets of these planning vehicles.

The Family Limited Partnership Deskbook provides thoughtful and detailed knowledge on the basic principles of drafting, how and when to form and fund an FLP or LLC, and the fundamental principles used in valuing FLP and LLC interests that are to be transferred. The authors also examine the most advanced income tax concerns, including special allocations of and adjustments to basis, and the taxation of non-liquidating and liquidating distributions.

Useful for lawyers and planners with all levels of understanding and expertise in the area, this invaluable guide offers clear examples of principles involved with these vehicles as well as the practical applications of these techniques. It also considers important recent court decisions affecting FLPs and LLCs, including the lessons that can be learned from the Strangi cases. Adding to the book's value are examples throughout that illustrate points made in the text plus extensive sample forms that are also included on a CD-ROM that accompanies the book.

Follow this link for a complete Table of Contents.

Where should older or disabled persons live?

Lawrence A. Frolik (Professor of Law, University of Pittsburgh School of Law) has recently published his book entitled Residence Options for Older and Disabled Clients.

Here is a description of this book:

With the recent census figures reporting that more than 35 million Americans are age 65 and older and the expected prolonged life expectancy, the need for appropriate housing is inevitable. Residence Options for Older and Disabled Clients is a new book that provides comprehensive guidance on the many different types of housing available for aging and disabled individuals. It starts with the most independent type of living, proceeds through transitional forms of housing and ends with an in-depth discussion of medically-assisted housing.

It is crucial for attorneys of aging and disabled clients to be adequately informed about various housing options as there are many legal consequences involved with selling their existing home and joining a heavily-regulated, planned community. Attorneys have the opportunity to offer their clients important practical advice about age restricted housing and deed restrictions and thereby steer them away from potential problems. This guide provides you with guidance and answers critical questions to help you counsel your clients.

Housing options include:

• Condominiums and cooperatives
• Planned communities and homeowner associations
• Continuing care retirement communities 
• Assisted living
• Group homes for the disabled
• Nursing homes
• Hospice care
• And much more.

Whether you’re a lawyer, financial planner, geriatric case manager or a caregiver, this book will expand your knowledge of the various types of housing and offers you assistance in selecting the most appropriate place for an individual’s specific needs.