Wills, Trusts & Estates Prof Blog

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

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Friday, July 31, 2015

New Book On Working With Aging Clients

Article PictureThe first edition of Working with Aging Clients: A Guide for Legal, Business, and Financial Professionals by Carolyn L Rosenblatt has recently been published and is available through ABA Book Publishing. Provided below is a description of the book:

Working with Aging Clients places a special focus on financial elder abuse as well as the capacity of financial decision making for seniors.  The author provides shrewd techniques to guide professionals in identifying, preventing or simply stopping financial elder abuse.

This book is an essential aging and financial resource, providing:

  • A look at aging clients from their point of view.
  • Insights from a seasoned geriatric nurse’s perspective that has expertly cared for seniors augmented by a litigator’s experience in representing elder clients and their best interests.
  • Principles with illustrations from actual cases, particularly diminished capacity.
  • Heightened consciousness surrounding age-related biases, myths, and stereotypes.
  • Proven strategies to resolve conflicts and valuable tips for successful elder-related mediation.
  • An easy roadmap for both legal and non-legal professionals who share an interest in better serving their aging clientele.

July 31, 2015 in Books, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, July 29, 2015

CLE On Estate Plans After American Taxpayer Relief Act of 2012

CLEThe American Bar Association is presenting a CLE entitled, Oh, What a Relief It Is: Curing Estate Plans that No Longer Make Sense in Light of the American Taxpayer Relief Act of 2012, Tuesday August 18, 2015, 12:00-1:30pm Central, online.  Here are some details about the event:

ABA Members join RPTE for $70 to save $55 on this and future RPTE teleconferences, sign up at Register online. Find upcoming programming here . You may also email Michael.Kesler@americanbar.org, or call 312-988-5260. Visit www.shopaba.org to update your preferences to receive future program announcements via e-mail.

This program will be available on audio CD and MP3. Order from the ABA Web Store
(search by program title or keyword).

Cancellations and requests for refunds will be honored on the following basis: Two business days or more, 100% refund; one business day or less, 100% refund minus the $25 administrative fee. Substitute registrants are welcome. The ABA will seek 1.5 hours of CLE credit in 60-minute states and 1.8 hours of CLE credit in 50- minute states in states accrediting ABA live webinars and teleconferences.* Credit hours granted are subject to each state’s approval and credit rounding rules. NY- licensed attorneys: This non-transitional CLE program has been approved for experienced NY-licensed attorneys in accordance with the requirements of the New York State CLE Board for 1.5 New York CLE credits.

July 29, 2015 in Conferences & CLE, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Monday, July 27, 2015

Use An Incentive Trust To Make Sure Beneficiaries Stay On The Up And Up

TrustA primary concern for those setting up trust with a third party beneficiary is how the money will be used once it is distributed. As a result, incentive trust have become popular as they dictate how the assets will be distributed and often creates a reward for behavior that is in line with the settlor's expectations. Here are some tips and considerations to keep in mind when a client is considering the use of an incentive trust:
  • Make a plan for the distributions such as granting a trustee total discretion or creating a list of actions that, if complied with by the beneficiary, will net an additional (or any in some circumstances) distribution. The settlor will also need to determine if distributions will come from income, principle, or both.
  • If the trust is set up to support a particular goal, such as attending college, then the settlor must decide if the distributions will be made directly to the beneficiary or if the trustee will pay any bills that accrue directly. This is particularly important if the beneficiary has shown signs of irresponsible use of money in the past or there are concerns that a distribution will not be used appropriately.
  • The client will need to determine if the trust will continue for the life of the beneficiary or will terminate with its assets distributed at a predetermined time. Most importantly, the settlor, preferably in consultation with advisors, must determine what the future needs of the beneficiary will be and if a trust will remain useful in the distant future when circumstances change.
  • Determine any penalty that will be applied if the beneficiary does not comply with the terms of the trust. For example, if the purpose of the trust is to fund an advanced degree, which the beneficiary never completes, then the trust corpus will pass to a charity.
  • Always make sure that the final draft of the instrument contains all key terms and conditions. One forgotten sentence may lead to years of legal wrangling down the line and defeat the purpose of the trust.
See Charles A. Redd, Tips From The Pros: The Ultimate in Dead Hand Control–Incentive Trusts Part II, Wealth Management, June 25, 2015.

July 27, 2015 in Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, July 26, 2015

British Queen Will Get Income Boost From Duchy Of Lancaster Estate

QueenThe British royal family has received a boost in income from its Duchy of Lancaster Estate.  “The royal household will receive 16 million pounds ($34 million) this year, up 18 per cent from the previous year, according to accounts released by the duchy.”  Currently the net operating income of the royal estate is the highest it has ever been.  The estates strong performance has spread across all of the portfolios.  Ownership of land, property, and investments is one of the many sources of income for the British royal family. 

See Queen Elizabeth II to receive 18 per cent income boost from Duchy of Lancaster Estate, ABC, July 24, 2015. 

July 26, 2015 in Current Affairs, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Saturday, July 25, 2015

Texas Passes New Rules To Disclaim Property

TexasThe Texas Legislature recently passed new rules concerning the proper procedure to disclaim property. Among the major changes, the new act unifies the right to disclaim under the Property Code rather than have the rights spread between the Estate and Trust Code. In addition, fiduciaries now have the right to disclaim property though some, such as guardians, must seek court approval although trustees have the right to disclaim without a judge's blessing. The most important change, however, is the elimination of the nine month time limit to disclaim; from here on out a disclaimer will be effective as long as no control has been exerted over the property. A version of the new statute may be found here.

See Glenn Karisch, The new Texas Uniform Disclaimer of Property Interests Act, Texas Probate, July 9, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

July 25, 2015 in Estate Administration, New Legislation, Trusts, Wills | Permalink | Comments (0)

Friday, July 24, 2015

41st Annual Notre Dame Tax & Estate Planning Institute

CLEThe University of Notre Dame Law School is sponsoring the Forty-First Annual Notre Dame Tax & Estate Planning Institute on September 17-18, 2015. Provided below is the program description:

The 41st Annual Notre Dame Tax and Estate Planning Institute will take place on September 17th and 18th, 2015, in South Bend at the Century Center on the banks of the St. Joseph River in downtown South Bend, Indiana, at 120 South St. Joseph Street. South Bend uses Eastern Time (same as New York City)

The 41st Annual Institute will present topics relevant for all individuals, even those not exposed to the estate tax because of the high exemptions. Several sessions are designed to evaluate financial products and planning techniques so that one can better understand and evaluate these products and proposals in determining not only the tax and financial advantages they offer, but also their limitations. In addition, the Institute offers topics not found in most estate planning CE programs such as protecting the elderly from scams and exploitation. As part of the objective of refreshing areas that can expand one’s practice, a session will review the income tax consequences of debt cancellation, foreclosures, and debt restructuring. Recognizing the importance of the income tax, the Institute will continue to devote sessions to income tax planning techniques clients can use immediately.

July 24, 2015 in Conferences & CLE, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, July 22, 2015

What To Think About Before Dissolving A Family LP Or LLC

TrustLimited partnerships (LP's) and limited liability corporations (LLC's) remain popular estate planning devices due to their ability to save on gift and estate taxes. However, many families derive other benefits from the arrangements which should be taken into account before dissolving the entity. First and foremost, LP's and LLC's offer excellent limited liability to the owners of the entities which should be taken into account before making a decision to change business structure. Unintentionally exposing one's self to liability could end up costing more than any benefits that were derived from any change that was made. The limited ability to transfer shares, be they minority or controlling, is also as appeal as it will keep the business in the family while usually providing a buyout mechanism for anyone that wants to sell.

However, there are some downsides as well, with the estate tax exclusion being set at such a high level the tax saving potential is much reduced and the discounted valuation of the shares in the LP or LLC may increase capital gains tax in the future due to the lower stepped up basis received at death. Ultimately, if there is an estate planning situation involving a decision about the future of a family partnership, all factors must be taken into consideration because one supposed benefit may be more than offset by unexpected downsides.

See Martin Shenkman, Dissolving an FLP/LLC: Part I, Wealth Management, July 20, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

July 22, 2015 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Friday, July 17, 2015

Article On Uniform Fiduciary Access Digital Assets Act

Article PictureVictoria Blachly (Partner- Samuels, Yoelin, Kantor LLP) recently published an article entitled, What UFADAA Know, 29 Probate & Property 4 (July/August 2015). Provided below is an excerpt from the article:

Do you post to any on-line social media accounts that tell part of the story of your personal or professional life? What happens to those accounts or assets when you die or become incapacitated? Does your personal representative have the authority or ability to access those accounts and try to put the pieces of a financial picture back to together? Can those photographs be copied and delivered to the grieving family left behind? Should certain accounts or information be deleted, particularly if a protected person is being targeted on-line or identity theft is an issue? Even if an authorized user has the password to access an online account, is that a fraudulent cybercrime by misrepresenting to the end user who you are? All of these questions lead to one inescapable issue: the Internet is outrunning the law.

July 17, 2015 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

A Few SImple Steps Every That Help Protect An Estate

WillsMost Americans will die intestate with little, if any, estate planning before death. For the elderly with small estates and uncomplicated family situations dying without a will wont be a problem. But for everyone else, estate planning is a key step to take to prepare for later in life and passing down a legacy to ones' heirs. Some simple steps everyone could benefit from includes the creation of a living will to dictate end of life medical treatment and establish the identity of decision maker in the event of incapacitation. An up to date will is a must for anyone with significant assets or has property they intend to pass in a manner in conflict with state intestacy laws. Ultimately, many people need estate planning but do not seek it due to their lack of information concerning the risk of faulty or nonexistent planning.

July 17, 2015 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Tips To Preserve Key Estate Documents

TrustEstate planners are forced to cope with the fact many important documents must be held by various parties and that the safety of these key papers is not always a priority of the holder. Losing a document, such as a will, could throw even the best planned estate into turmoil that could lead to years of litigation. Here are some tips on how to make sure original documents are well protected:
  • Make sure original documents are easy to find. This is particularly important for wills since they are documents that often must have an original presented in order to gain a presumption of validity.
  • Make copies of an unaltered original to provide extra safety. However, this may be a risky tactic for wills since copies may complicate matters if the original was revoked or altered.
  • Use a safety deposit box that is set up for easy access after death. Placing documents in a safety deposit box offers unequaled protection from theft or casualty and easy access for the holder of the documents or estate representatives.
  • If a person is using a health care directive, make sure it indicates the location of the original will document and copies plus the name of the primate care physician. Those three pieces of data will help by making all final wishes know to the necessary parties.
See Tom Nawrocki,  5 tips for keeping original paperwork of key estate planning documents, Life Health Pro, July 14, 2015.

July 17, 2015 in Death Event Planning, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)