Wills, Trusts & Estates Prof Blog

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

Wednesday, October 17, 2018

Ongoing CLE: 2018 National Conference on Special Needs Planning and Special Needs Trusts

CLECelebrating 20 years, the 2018 National Conference on Special Needs Planning and Special Needs Trusts is the premier conference for you and your colleagues to attend! This conference is a must for anyone working in the field of special needs planning. The conference offers three pre-conference intensives Tax, Pooled SNTs and Veterans Benefits along with the two-day national conference.

Pre-Conferences | Wednesday, Oct. 17, 2018

  • Tax Intensive: This full-day program, with breakouts, will focus on the tax issues in special needs planning from experts in the field of tax and planning from across the country.
  • Pooled Trusts Intensive: This full-day program, with breakouts, will focus on issues for pooled trusts administrators, attorneys and others who work with pooled trusts.
  • Veterans Benefits Intensive: This half-day program, will feature three hours of training on veterans benefits with the Honorable Michael P. Allen, U.S. Court of Appeals for Veterans Claims, and Professor Stacey-Rae Simcox, Stetson University College of Law. It will also feature an overview of the Office of General Counsel of the Department of Veterans Affairs by the VA General Counsel, and an update from Chief Judge Robert N. Davis, U.S. Court of Appeals for Veterans Claims.

VA accreditation requires approval from a State bar association and must also satisfy the requirements of 38 C.F.R. § 14.629(b)(1)(iii), Stetson University College of Law will apply to the state of Florida for CLE credit and the agenda will meet the requirements of 38 C.F.R. § 14.629(b)(1)(iii). Attendees will then be required to submit on their own for VA accreditation. 

National Conference | Oct. 18–19, 2018

  • The conference will start on Thursday and Friday mornings with general sessions on a variety of important topics, followed by breakout sessions on cutting-edge topics in the afternoon. Friday morning starts with a presentation by Samara Richardson, associate commissioner for the Office of Income Security Program (via video conference) followed by the not-to-be-missed experts panel. The conference closes with the popular The Update by Robert W. Fechtman and Robert B. Fleming.

October 17, 2018 in Conferences & CLE, Current Events, Elder Law, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Thursday, October 11, 2018

Avoid Probate Court: Head to Your Bank Instead [Texas]

BankProbate court is expensive and time intensive, and the majority of accounts have beneficiary designations that allow them to be transferred outside of probate. With a trust, more assets can be transferred outside of a courtroom. Financial institutions are called upon to help a customer determine what type of account to use and, after death of the customer, review legal documents and carry out the transfer instructions.

There are other tools that can be utilized to avoid a formal probate process, such as a small estates affidavit in Texas for estates that have less than $75,000 in assets (excluding the homestead). If there is a will and there are no unpaid debts or a need for administration, the will can be admitted to probate under a unique Texas proceeding known as a “muniment of title.” No administrator will be assigned and banks will be presented with a certified copy of of either a a small estates affidavit or an order admitting a will to probate as a muniment of title to pay out the funds in the accounts.

Power of attorney (POA) can also avoid the complex issue of a guardianship, and under a new state statute passed in 2017, POAs in Texas have expanded powers. Due to this, financial institutes also have a statutory obligations to report alleged fraud or abuse of the elderly to the proper authorities.

Employees of financial institutes are finding themselves in position to answer difficult questions and find harder solutions. They may find themselves in more of an advisor role. They may need to become more knowledgeable about statutory changes and new estate planning options, especially self-help tools, that are available to customers and train their personnel accordingly.

See David B. West, Avoid Probate Court: Head to Your Bank Instead, Lexology, October 4, 2018.

October 11, 2018 in Current Affairs, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, New Legislation, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Tuesday, October 9, 2018

Nursing Homes are Pushing the Dying into Pricey Rehab

NursinghomeThe University of Rochester published a study finding that nursing home residents who received “ultrahigh intensity” rehabilitation increased by 65% from October 2012 to April 2016, some even in their last week of life. Medicare defines “ultrahigh” therapy as more than 12 hours per week.

The study analyzed data from 647 New York-based nursing home facilities and 55,691 long-stay residents that had died, with a specific focus on those who received very high to ultrahigh rehabilitation services—including physical, occupational and speech therapy—during the last month of their life. Treatments categorized as such receive the highest payout from Medicare and other insurers.

Helena Temkin-Greener, the lead author of the study and a professor at the University of Rochester Medical Center Department of Public Health Sciences says that the findings raise questions on whether there is a financial reason rather than a medicinal one for those types of treatments. For-profit nursing homes were more than two times as likely to use high to ultrahigh intensity therapy than were nonprofit homes.

On the other hand, the study could be indicative that nursing home staff are failing to recognize when a patient is nearing the end of their life. “It is important for [skilled nursing facility] providers and their care teams to consider the risk-benefit of potential therapy interventions and dosage relative to the resident’s current health status,” said Daniel Ciolek, associate vice president of therapy advocacy at the American Health Care Association, which represents most of the country’s for-profit nursing homes.

See Riley Griffin, Nursing Homes are Pushing the Dying into Pricey Rehab, Bloomberg, October 9, 2018.

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

October 9, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Monday, October 8, 2018

Farmland Inheritance: Intentional Interference Judgement Upheld in Court

FarmOn July 18, 2018, in the case In the Matter of Estate of Lois B. Erickson the Iowa Court of Appeals affirmed a trial court finding of invalidity of a will based on undue influence and lack of testamentary capacity. They further held that one party was liable for tortious interference with a bequest.

Lois B. Erickson had three adult children: Wayne, who farmed, and Alan and Mary Ann who did not farm. The majority of their mother's estate consisted of farmland. Lois executed a will in 2010 that divided her estate equally among her three children. In 2011, however, a new will was drafted that gave the majority of the estate to Wayne. The other two children shortly afterwards pursued a guardianship for their mother. When Wayne learned of the impending guardianship hearing, he had his mother sign an amendment 2 days prior to the court hearing that anyone that contested the 2011 will would "reimburse my son, Wayne D. Erickson, at the rate of $1,500.00 per hour.” The physician who evaluated Lois for the guardianship hearing diagnosed her with “moderate to severe” Alzheimer’s.  The court thus ordered Alan to serve as his mother’s guardian.

The appellate court found the 2011 will was invalid based upon Wayne’s undue influence over his mother and the fact that Lois lacked testamentary capacity when she executed the will.  Regarding Lois’ testamentary capacity, the court cited Lois’ physician’s diagnosis of severe Alzheimer’s disease and the physician’s view that Lois could not make any major decisions on her own. As to undue influence, the court again cited Lois’ medical diagnosis.

The appellate court found that tortious interference does not mean the same thing as undue influence.  Tortious interference takes more:

The necessary proof in an action for intentional interference with a bequest or devise focuses on the fraud, duress, or other tortious means intentionally used by the alleged wrongdoer in depriving another from receiving from a third person an inheritance or gift.

On several occasions Wayne accused his siblings of stealing from his mother in an effort to have them disinherited. Every time the police were involved they found no evidence of theft.

See Holly M. Logan, Farmland Inheritance: Intentional Interference Judgement Upheld in Court, David Brown Law, September 4, 2018.

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

October 8, 2018 in Disability Planning - Property Management, Elder Law, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Sunday, October 7, 2018

CLE on Inherited IRAs: What the Practitioner Must Know

CLEKaplan Financial Education is holding a conference entitled, Inherited IRAs: What the Practitioner Must Know, on Wednesday, November 28, 2018, at the New York City Bar Association in New York City, New York. Provided below is a summary of the event:

Retirement assets often represent a substantial portion of a taxpayer’s wealth. The retirement assets may be accumulated in a 401(k) plan, 403(b) arrangement, in another kind of qualified plan, or in an IRA. Regardless of the retirement arrangement involved, the tax consequences of making the right move at the right time can be financially beneficial – or, conversely, financially hazardous – for the taxpayer and the taxpayer’s family.

This program will help you avoid common errors when dealing with retirement assets during your client’s lifetime and after your client’s death. Tax planning with retirement assets including integrating retirement assets in an estate plan will be discussed.

Prerequisites and Why You Should Attend

Prerequisites-Basic knowledge of tax planning with retirement assets.

Who should attend - CPA's, attorneys or financial planners who have clients with substantial retirement assets.

Details

 

Some topics included in this continuing education program:

  • Common Errors in Retirement Distribution Planning
  • How to handle a Non Compliant client who has violated the required minimum distribution rules
  • Statute of Limitations on IRA penalty issues
  • How to use Form 5329 to request a waiver of the required minimum distribution 50% penalty tax
  • Personal liability of fiduciary who knows about the penalty
  • Why many beneficiary forms are defective
  • How the Inherited IRA rules work
  • Overview of the Spousal IRA rules 
  • Application of One-Per-Year Limit on IRA Rollovers, with examples
  • Inherited IRAs after the 2014 U.S. Supreme Court decision in Clark v. Rameker
  • Recent court case of first impression holding that inherited IRAs are not protected against creditors under New York State law
  • Use of IRA trusts after the Tax Cuts and Jobs Act

 You will also receive an electronic copy of the presentation as a PDF, which is your reference manual, at no additional cost. 

 

Continuing Education Credits

CFP -  

Kaplan Financial Education is a CFP Board CE Sponsor.  This course has been accepted by the CFP Board for 4 CE hours.
 

CPE -

This program qualifies for up to 4 CPE credits in Taxation.

CPE Certificate of Completion: All attendees will receive a certificate of completion to document attendance at the end of each program. Walk-ins will receive their certificate within 5 days of the program date. These programs comply with the Standards for Formal Group Programs published by the American Institute of Certified Public Accountants. Loscalzo Associates, Ltd. has been approved as an acceptable sponsor of Continuing Professional Education Programs by NASBA - Sponsor #103266; New Jersey State Board of Accountancy - Sponsor #116; and New York State Board for Public Accountancy - Sponsor #000143. For more information regarding administrative policies such as complaints and refunds, please contact our office.

Note: If you lose your CPE Certificate and require a new one, a $25 per certificate fee will be charged

CLE -

CLE credit for 4 hours in Professional Practice, nontransitional. The CLE course provider is IRG Publications. You will receive an electronic copy of the presentation in advance of the program, which is your reference material. Certificate of Attendance from IRG Publications, the CLE course provider, will be sent to attorney attendees electronically within 20 days after the program, using the New York CLE Certificate of Attendance. If an attendee is attending from a state other than New York, it will be the responsibility of the attendee to verify with their local State Bar Association regarding the acceptance and amount of individual courses for CLE credit.

Special thanks to Seymour Goldberg (Goldberg & Goldberg, P.C.) for bringing this article to my attention.

October 7, 2018 in Conferences & CLE, Elder Law, Estate Administration, Estate Planning - Generally, Income Tax | Permalink | Comments (0)

Thursday, October 4, 2018

CLE on Estate Planning: Document Review and Issue Spotting

CLEThe National Institute of Business is holding a webinar entitled, Estate Planning: Document Review and Issue Spotting, on Monday, December 10, 2018, at 12:00 p.m. to 3:15 p.m. Central. Provided below is a description of the event:

Program Description

Speed Up Your Drafting Process with a Practical Guide to Reviewing Estate Plans

Crafting a client's legacy requires a keen eye for detail: every element of the estate plan must be meticulously selected, executed and coordinated with the rest of the tools. This practical legal guide will give you real-life guidance to spotting common problems and ensuring that every plan works like clockwork. Give clients (and yourself) peace of mind - register today!

  • Learn what key elements to look for when reviewing wills and trusts.
  • Ensure the plan truly reflects the client's goals and accounts for family dynamics and other unique circumstances.
  • Identify ALL relevant laws and ensure compliance.
  • Examine auxiliary documents to make certain no detail is missed.
  • Get guidance on coordinating all tools and documents into a cohesive plan.

Who Should Attend

This estate planning guide is designed for attorneys. It will also benefit trust officers, wealth managers, tax professionals, and paralegals.

Course Content

  1. Covering the Basics
  2. Ensuring Compliance with the Laws
  3. Reviewing the Will/Trust(s)
  4. Reviewing Auxiliary Documents
  5. Making Certain all the Planning Tools Work Well Together
  6. Handling Unique Client Scenarios

Continuing Education Credit

Continuing Legal Education

Credit Hrs State
CLE 3.00 -  AK
CLE 3.00 -  AL
CLE 3.00 -  AR
CLE 3.00 -  AZ
CLE 3.00 -  CA
CLE 4.00 -  CO
CLE 3.00 -  CT
CLE 3.00 -  DE
CLE 3.50 -  FL*
CLE 3.00 -  GA
CLE 3.00 -  HI
CLE 3.00 -  IA
CLE 3.00 -  ID
CLE 3.00 -  IL
CLE 3.00 -  IN
CLE 3.50 -  KS
CLE 3.00 -  KY
CLE 3.00 -  LA*
CLE 3.00 -  ME
CLE 3.00 -  MN
CLE 3.60 -  MO
CLE 3.00 -  MP
CLE 3.00 -  MS
CLE 3.00 -  MT
CLE 3.00 -  NC
CLE 3.00 -  ND
CLE 3.00 -  NE
CLE 3.00 -  NH
CLE 3.60 -  NJ
CLE 3.00 -  NM
CLE 3.00 -  NV
CLE 3.50 -  NY*
CLE 3.00 -  OH
CLE 3.50 -  OK
CLE 3.00 -  OR
CLE 3.00 -  PA
CLE 3.50 -  RI
CLE 3.00 -  SC
CLE 3.00 -  TN
CLE 3.00 -  TX*
CLE 3.00 -  UT
CLE 3.00 -  VA
CLE 3.00 -  VT
CLE 3.00 -  WA
CLE 3.50 -  WI
CLE 3.60 -  WV
CLE 3.00 -  WY

Continuing Professional Education for Accountants

Credit Hrs State
CPE for Accountants 3.50 -  AZ
CPE for Accountants 3.50 -  NY*
CPE for Accountants 3.50 -  WA
CPE for Accountants 3.00 -  WI

 * denotes specialty credits

October 4, 2018 in Conferences & CLE, Elder Law, Estate Planning - Generally, Estate Tax, Income Tax, Trusts, Wills | Permalink | Comments (0)

Article on Tax-Efficient Charitable Giving of Savings or Retirement Benefits

CharityAlbert Feuer recently published an Article entitled, Tax-Efficient Charitable Giving of Savings or Retirement Benefits, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

Individuals often fund charitable gifts with their savings or retirement benefits. However, such benefits, other than those from a Roth individual retirement arrangement, are generally included in the individual’s gross income when received, and may not be deductible from the donor’s income. This article discusses how savings or retirement lifetime and survivor benefits may be used to fund charitable contributions in a tax-efficient manner. These tax advantages may be offset by other considerations, tax and otherwise. It is generally advisable to use beneficiary designations to make charitable contributions of survivor benefits, but such designations may not be permissible. Although a will or trust may also be used to make the desired contributions of savings or retirement benefits, this approach may raise non-charitable tax-planning issues. The most favorable tax consequences arise from special or demonstrative (pecuniary) bequests, which are treated like plan designations. General (pecuniary) bequests, unlike residuary bequests, may cause a mismatch between income and charitable deductions.

Lifetime savings or retirement benefits, unlike survivor benefits, often need not be distributed immediately. Thus, they may often be replaced with other sources for charitable contributions without adverse tax consequences. Qualified charitable distributions (“QCDs”), which result in an income tax exclusion and no charitable deduction, are often an advisable way to make charitable contributions if one has substantial IRAs, and has reached 70 ½. This is particularly the case for those who wish to donate amounts equal to or less than the required minimum distributions and will not be itemizing their deductions, or those very concerned about avoiding inclusion of distributions in gross income, such as rent-regulated tenants with considerable savings or retirement income. However, if itemized deductions are available, it may be more advantageous to use appreciated publicly traded securities to fund charitable contributions than QCDs. The donor thereby would obtain both an income tax exclusion and a tax deduction, rather than merely an income tax exclusion.

October 4, 2018 in Articles, Elder Law, Estate Planning - Generally, Income Tax, Trusts, Wills | Permalink | Comments (0)

Monday, October 1, 2018

In the Nursing Home, Empty Beds and Quiet Halls

NursingThe most recent quarterly survey from the National Investment Center for Seniors Housing and Care reported that nearly one nursing home bed in five now goes unused, with an occupancy rate of 81.7%. Bill Kauffman, senior principal at the center, said “The industry as a whole is under pressure, and some operators are having difficulty.”

Nicholas Castle, a health policy researcher at the University of Pittsburgh, estimated that “200 to 300 nursing homes close each year." The number of residents of nursing homes have been decreasing, which can be a bit surprising as the country's population as a whole is aging. But the financial hardships of increasing costs for long-term care as well as regulatory stipulations cause those that may want to enter these type of facilities to be hindered. Under the Affordable Care Act, for instance, hospitals face financial penalties for readmissions, and Medicare won’t cover skilled nursing care for these patients after their initial discharge.

“You have increased alternatives, like assisted living, and other ways for people to stay at home,” said Ruth Katz, senior vice president of public policy at Leading Age.

See Paula Span, In the Nursing Home, Empty Beds and Quiet Halls, New York Times, September 28, 2018.

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

October 1, 2018 in Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, September 28, 2018

What 'Succession' and Sumner Redstone can Teach us About Planning Ahead for Senior Care

SumnerFormer executive chairman of  Viaciom's Sumner Redstone,’s story was a key influence on the HBO hit series Succession, riveting the country with the litigious financial power struggle that has embroiled his family. Though the majority of clients may not have to worry about billions of dollars in assets, disagreements over money can and often do prevent families from making the appropriate choices about care.

Medicare, the primary insurer for 55 million older adults and people with disabilities, does not typically pay for long-term care services including nursing homes and in-home care. The majority of people don't have the financial resources to pay for the staggering costs senior care, but make "too much" to qualify for Medicaid assistance. If you are among the “in-betweeners,” you’ll need to be resourceful because care is expensive.

Baby boomers are turning 65 at an amazing rate of 10,000 per day, and 70% of Americans over that age will need long-term care at some point in their lives. Planning ahead for this type of care is becoming increasingly vital, especially if you would rather age in-place rather than in a nursing home. Because in-home caregivers average $22 per days, many elderly citizens depend on care from family members, and the majority of them are dipping into their own pockets to do so.

See Jody Gastfriend, What 'Succession' and Sumner Redstone can Teach us About Planning Ahead for Senior Care, Forbes, September 27, 2018.

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

September 28, 2018 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Sunday, September 23, 2018

5 Ways to Know you Need a Guardianship for Mom (or Dad)

GuardianshipMany adult children see that once their parents reach a certain age, their roles may reverse. The child may be taking care of the parent more and more. But when does the child know that it is time to take the drastic step of establishing a guardianship for their mom or dad? Here are 5 ways that may indicate their your beloved parent may need a court's intervention to protect them and their assets.

  1. Refusal to sign a power of attorney.
    • If your parent either refuses to sign anything in front of them, or you have the frightening feeling that they would sign anything in front of them, a guardianship may be necessary.
  2. Real property or investments have to be sold.
    • Depending on the laws of your state, you may have to have a guardian appointed in order to sell their home or other investments if you have been appointed with power of attorney.
  3. Disagreement over nursing home.
    • If you feel that your parent would be healthier (and safer) in a nursing home and they refused, you may need to petition to be named as guardian.
  4. Medical intervention beyond the health care proxy.
    • If your parent cannot give informed consent anymore because of dementia or Alzheimer's, being appointed as a guardian can give you the authority to authorize medical treatment and certain medications.
  5. Decision-making is compromised in some areas.
    • A limited guardianship may be the best course of action if your parent retains the ability to make decisions in certain areas of their life but not in others, such as financial or investment decisions.

See Christine Fletcher, 5 Ways to Know you Need a Guardianship for Mom (or Dad), Forbes, September 13, 2018.

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

September 23, 2018 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)