Monday, August 21, 2017
Article on Rachal v. Reitz and the Efficacy and Implementation of Mandatory Arbitration Provisions in Trusts
Steven D. Baker recently published an Article entitled, Rachal v. Reitz and the Efficacy and Implementation of Mandatory Arbitration Provisions in Trusts, 9 Est. Plan. & Community Prop. L.J. 191 (2017). Provided below is an abstract of the Article:
With the recent decision in Rachal v. Reitz, the Supreme Court of Texas enforced a trust provision requiring binding arbitration of disputes between a trustee and a beneficiary, joining Florida and Arizona in explicitly recognizing the validity of such clauses. Settlors and testators who seek to minimize the delays and costs of potential conflict between beneficiaries will enjoy the favorable decision. But while the Rachal court answered, at least in part, the question of whether the settlor of a Texas trust can impose arbitration on the trustee and beneficiaries, the conscientious estate planning practitioner must also consider whether a client should do so in its will and trust instruments.
Accordingly, the first part of this article discusses the advantages and disadvantages of arbitration—a vehicle for avoiding litigation developed for the commercial world—in the realm of settling trust controversies. The second part of this article considers the impact of the Rachal opinion, as well as statutes in other jurisdictions that have recognized the use of such provisions. The third part addresses the particular limitations of mandatory arbitration in the context of resolving trust disputes. And the last part discusses the implementation of trust arbitration, both in terms of the summarizing the procedures set forth in the Texas Arbitration Act (TAA) and the drafting of the clause itself.
Gerry W. Beyer and Kerri Nipp have just posted on SSRN their article entitled Cyber Estate Planning and Administration.
This article aims to educate estate planning professionals on the importance of planning for the disposition and administration of digital assets so that fiduciaries can locate, access, protect, and properly dispose of them. The operation of the Revised Uniform Fiduciary Access to Digital Assets Act now enacted in at least thirty-six states is explained in detail. Several planning techniques that may be employed are discussed and the appendices include sample forms clients may use to organize their digital assets and sample language that can be used in estate planning documents, court orders, and in request letters to digital asset custodians.
Wednesday, August 16, 2017
The National Business Institute is holding a conference entitled, Estate Administration Boot Camp, which will take place on Thursday, August 16, 2017 at the DoubleTree by Hilton Dallas - Love Field in Dallas, TX. Provided below is a description of the event:
Everything You Need to Know About Effectively Administering an Estate
Are you fully confident in your knowledge of the latest court and tax rules and the most effective transfer tools to ensure each client's estate is laid to rest according to the decedent's wishes, with minimal tax burden? This comprehensive 2-day instruction will give you all the skills you need to administer estates that include trusts and/or business interests without a hitch. Register today!
- Don't miss any crucial notice and filing requirements when opening the estate - learn what must be done right away.
- Get helpful forms and checklists that will help you in administration.
- Understand how income and estate tax deductions interact and find the most advantageous way to structure the tax returns
- Learn how to use disclaimers more effectively.
- Clarify what must be done when the trust becomes irrevocable.
- Protect your professional reputation with a practical legal ethics guide focused on trusts and estates practice.
- Prevent mistakes in final petition and ensure each estate is closed quickly and without disputes.
Who Should Attend
This two-day, basic level seminar is designed for:
- Enrolled Agents
- Certified Financial Planners
- Trust Officers/Administrators/Managers
- Forms of Administration and When They are Used
- First Steps and Notices, Executor Duties, Opening the Estate
- Marshalling the Assets
- Key Intestacy Laws You Must Know
- Handling Debts and Claims Against the Estate
- Spouse Elective Share and Disclaimers
- Trusts That Affect Estate Administration
- Income Tax Returns
- Portability and Estate, Gift, GST Taxes
- Business Interests in Estate Administration
- Legal Ethics in Estate Administration
- Closing the Estate and Final Accounting
- Estate and Trust Contests, Disputes, Challenges
Continuing Education Credit
Continuing Legal Education
Credit Hrs State
CLE 12.00 - OH*
CLE 12.00 - TX*
International Association for Continuing Education Training – IACET: 1.20
National Association of State Boards of Accountancy – CPE for Accountants: 14.00 *
* denotes specialty credits
Monday, August 14, 2017
Billie Lourd, daughter of Carrie Fisher, is set to inherit nearly $7 million of personal property left to her by her mother. $6.8 million is a relatively substantial inheritance, but it is quite diminutive in comparison to the $2 billion in revenue earned by the latest Star Wars film in which Fisher played. It is possible there is additional money that has been left in trust, which would not be reflected in the probate of Fisher’s will.
See Carrie Fisher's Daughter Billie Lourd Will Inherit Nearly $7 Million, TMZ, August 9, 2017.
The American Legal Institute is holding a conference entitled, Powers of Attorney: Latest Legal Developments, which will take place via telephone seminar or audio webcast. Provided below is a description of the event:
Don’t miss Powers of Attorney: Latest Legal Developments! If you represent individuals who worry about managing their assets in the event of incapacity, then you need this course!
While low cost and flexible, the durable power of attorney (POA) has been used to engage in financial abuse of incapacitated persons. Whether you represent the principal, the agent, or a third party, this 90-minute program will help you gain insights on how to craft effective POAs as well as tips for advocacy when financial abuse occurs. Fellows from The American College of Trust and Estate Counsel will discuss:
Uniform Power of Attorney Act (UPOAA)
“Hot” Additional Powers to Consider
Enforceability (vis a vis financial institutions, 3rd parties)
Agent’s Fiduciary Duties
Liability for Breach
Recent state developments
Register today for this August 10th seminar! Register two or more from your organization and save.
Bernard A. Krooks, Littman Krooks LLP, White Plains, New York - Moderator
Beth Chapman, Faulkner Banfield, P.C., Juneau, Alaska
Deborah J. Tedford, Tedford Law Firm, P.C., Mystic, Connecticut
Significant discounts are available when two or more registrants in the same physical location view or listen to an ALI CLE webcast or telephone seminar using one computer connection or telephone. Save up to 50%!
Please don't hesitate to email us any questions you may have at firstname.lastname@example.org
Sunday, August 13, 2017
Considering one’s mortality can be an unsettling prospect. This natural aversion to discussing what will happen upon death leads many to avoid conversations about wills, trusts, assets, and final expenses. While such conversations may be uncomfortable, dying without an estate plan creates additional headaches for spouses and children that can add frustration and guilt onto their already-present sense of bereavement and loss.
In a modern arena, dying without a will offers problems unique to our technological age. Not disclosing or sharing online financial information may leave some assets overlooked. When passwords and usernames are not accessible, social media pages remain in stasis as heirs look for a means to close accounts.
See H. Dennis Beaver, You and the Law: Planning for the Expected Unexpected, Times Standard, July 31, 2017.
Wednesday, August 9, 2017
In 1943, John L. Griffin borrowed $200 to buy a used truck so he could go out and collect dead animals off the side of the road. From these extremely humble beginnings, Griffin grew his road-kill collecting business into a multi-million dollar animal-processing empire. Unfortunately, upon his death, his sons transferred property that should have gone to their sisters into the company in order to lubricate an $840 million sale. What has become a decades-long family dispute was somewhat finalized on Monday when the Sixth Circuit Court of Appeals weighed in on the feud. The court awarded the Griffin sisters $573 million in damages in recognition of the fraudulent manner their brothers handled the administration of the estate.
See Bruce Crippen, Appeals Court Rules in $573 Million Griffin Industries Family Dispute, Cincinnati Business Courier, August 1, 2017.
Special thanks to Jay Brinker, estate planning attorney, for bringing this article to my attention.
Monday, August 7, 2017
Rebecca M. Murphy and Samantha M. Clarke recently published an Article entitled, A New Hope: Tortious Interference with an Expected Inheritance in Rhode Island, 22 Roger Williams U. L. Rev. 531-589 (2017). Provided below is an abstract of the Article:
An extension of actions for interference with contractual relations, tortious interference with an expected inheritance, creates liability for a tortfeasor who intentionally prevents another from receiving an inheritance, at-death benefit, or lifetime gift. It is rooted in the concept that causes of action such as undue influence and fraud, typically brought in the probate courts, may be insufficient to provide a disinherited victim with a remedy, and premised on the maxim that every wrong should have a remedy.
Tortious interference with an expected inheritance or gift, though by no means a recently developed cause of action, has gained traction since its adoption by the Restatement (Second) of Torts in 1979, 2 and has received attention since the highly publicized 2006 United States Supreme Court decision in Marshall v. Marshall, perhaps better known as the Anna Nicole Smith litigation. 3 Currently, about half of the states acknowledge the tort. 4 Many of these states adopt the definition provided by the Restatement (Second) of Torts Section 774B (1979):
One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.
However, many of the states that recognize the tort only allow a claim of tortious interference where an alternate remedy at law (be it through the states' probate code or otherwise) is unavailable...
Friday, August 4, 2017
Martin Hevia & Daniela Schnidrig recently published an Article entitled, Terminal Patients and the Right to Refuse Medical
Treatment in Argentina, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
The right to health has many dimensions. On the one hand, it entails positive duties for states to protect the health of individuals. On the other, it encompasses patient decision making regarding personal health, an idea which is closely linked to the right to autonomy and the right to free development of the individual—that is, to dignity. This is why the informed consent of the patient and her right to make a choice according to her own values should be honored, even when her decision may seem irrational or imprudent. When patients are incapable of providing informed consent—for example, if the patient is unconscious—the law can authorize certain persons to act as a proxy on their behalf. In Argentina, the Patients’ Rights Act (2009) as amended by the Death with Dignity Act (2012) states that if a patient is unable to provide informed consent, consent may be provided on her behalf by her close relatives, affinal kin, or legal guardian, in this order of preference. The Patients’ Rights Act also permits patients to set up advance directives regarding health decisions to be made if they become terminally ill. In 2015, the Argentine Supreme Court of Justice discussed the scope of patient autonomy in the case D., M.A. s/declaración de incapacidad. This case presented a question that had yet to be explored by the court: how can we determine an unconscious patient’s will if she does not have written advance directives concerning whether a life-sustaining medical treatment should be continued? This article examines the grounds of the Argentine Supreme Court’s decision in D., M.A. First, we describe the case law that existed prior to D., M.A. Then, after explaining the facts of the case, we discuss the ruling and raise doubts about its scope.
Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.
Thursday, August 3, 2017
The National Business Institute is holding a conference entitled, The Probate Process From Start to Finish, which will take place August 04, 2017, at the Holiday Inn Knoxville West at Cedar Bluff in Knoxville, TN. Provided below is a description of the event:
Your Fundamental Guide to Probate
So your client wants you to handle a probate case - do you know where to start? Do you know the proper procedures to use, as well as the law? At this seminar, our experienced faculty will give you detailed, step-by-step information to confidently and ably navigate the system. Gain the confidence you need to reach a favorable outcome for your client when litigating in probate court. Enroll today!
- Get a step-by-step walkthrough of a probate case complete with practice tips from seasoned practitioners.
- Implement a complete estate timetable in order to know what needs to be done - and when.
- Effectively guide the executor and the administrator through their various duties.
- Avoid problems arising from creditors' claims and insolvency with our powerful strategies.
- Know the secrets to confidently handling a spouse's elective share.
- Forestall disagreements between beneficiaries: adhere to the guidelines of precedence in case of intestacy.
- Get results for your client! Explore successful strategies for litigating in probate court.
- Follow thorough closing procedures so accounting is complete before distribution takes place.
Who Should Attend
This basic level seminar will provide those who have limited probate experience with tips on successfully handling a probate case. This comprehensive seminar will benefit:
- Trust officers
- Financial planners
- Estate planners
- Taking the First Step: Filing an Estate in Probate Court
- Understanding the Role of the Personal Representative in Probate
- Managing the Inventory
- Administering the Estate Effectively
- Maintaining an Ethical Balance in Probate Practice
- Determining if Spouse's Elective Share is a Reasonable Option
- Uncovering the Laws of Intestacy and How They May Apply
- Litigating the Case in Probate Court
- Putting the Case to Rest: Closing the Estate
Continuing Education Credit
Continuing Legal Education – CLE: 6.67 *
Financial Planners – Financial Planners: 8.00
International Association for Continuing Education Training – IACET: 0.70
National Association of Legal Assistants, Inc. – NALA: 6.50 *
National Association of State Boards of Accountancy – CPE for Accountants: 8.00 *
National Federation of Paralegal Associations, Inc. – NFPA
Professional Achievement in Continuing Education – PACE: 8.00 *
* denotes specialty credits