Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Sunday, July 27, 2014

Does Fraud Really Mean Fraud?

InkFraudulent transfer law has a rich history. When English law put the idea in writing, they took it from Roman law. This old English law on fraudulent transfers is now well rooted in American law, and has recently been revisited through the Uniform Voidable Transactions Act. However, when English law borrowed from Roman law, there may have been a translation error that has been passed along for centuries. The word “fraud” that was derived from the Latin translation of the Roman law, was believed to mean misrepresentation, but now scholars believe the correct translation would be closure to the idea of disadvantage or prejudice.

See Jay Adkisson, The Uniform Voidable Transactions Act – What’s With the Name Change?, Forbes, July 18, 2014.

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

July 27, 2014 in Estate Planning - Generally, New Legislation | Permalink | Comments (0) | TrackBack (0)

Thursday, July 24, 2014

The Downside to Media Neutrality

Computer ProblemsAs I have previously discussed, the Uniform Law Commission adopted the Uniform Fiduciary Access to Digital Assets Act, which is a model code that aims to address the problem of digital assets disappearing into cyber space after the account holder dies. States will now be faced with the decision of whether to adopt the model provisions, including the idea of “media neutrality”, which allows the executor of the estate access to the digital assets.

However, for some, including those connected to high profile social media sites, this increased accessibility can be an invasion of privacy, both for the deceased account holder and third party individuals whose messages are saved to the account. Many private companies are now offering services that allow the account holder to set up what emails, pictures, and documents are to be saved or deleted after the account is deactivated or becomes inactive. If the model code is enacted in a state, then the person’s intention to make their account private after they die may be overridden and the account made public.

See Molly Roberts, A Plan to Untangle Our Digital Lives After We’re Gone, NPR, July 23, 2014.

July 24, 2014 in Estate Planning - Generally, New Legislation, Technology | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2014

Charitable Extenders Bill Passes the House

LawH.R. 113-4719 went from the Rules Committee to the House last week. The bill, which includes charitable extenders among its five measures, overcame a motion to send it to the Ways and Means Committee to limit the extenders and was approved by the House. Though White House senior advisors will likely recommend that President Obama veto the bill, it is unclear what the President will do if the bill comes across his desk.

See, House Approves Charitable Extenders, Including a Permanent IRA Rollover, Charitable Planning, July 18, 2014.

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

July 22, 2014 in Estate Planning - Generally, Gift Tax, New Legislation | Permalink | Comments (0) | TrackBack (0)

Sunday, July 20, 2014

Assisted Dying Bill Being Debated by House of Lords

Health LawAs I have previously discussed, the House of Lords is currently considering legislation to change assisted dying laws, which if passed would allow doctors to assist terminally ill patients to die. Lord Falconer’s Assisted Dying Bill is being carefully debated, and nearly 130 speakers shared their thoughts and stories on the topic. The debate is split by those that believe this bill is a compassionate response to individuals near death dealing with serious and painful illnesses, and those that have concerns about abuse of the practice or religious beliefs that oppose the practice.

See John Bingham & Matthew Holehouse, Assisted Dying: The Day the House of Lords Bared Its Soul, The Telegraph, July 18, 2014.

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

July 20, 2014 in Current Affairs, Current Events, New Legislation | Permalink | Comments (0) | TrackBack (0)

Pre-Mortem Probate Proceedings in New Hampshire

WillNew Hampshire has enacted a trust bill that includes a provision for pre-mortem probate proceedings. The proceedings can be brought by an individual during their life to have the judge rule on the validity of their will. Interested parties must be given notice of the proceedings, including the spouse and potential heirs.

Special thanks to Todd Mayo (Perspecta Trust LLC) for bringing this article to my attention.

July 20, 2014 in Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0) | TrackBack (0)

Friday, July 18, 2014

New York to Consider Regulation to Allow Humans and Pets Buried Together

PetsAs I have previously discussed, New York adopted regulations to allow pet cemeteries to bury cremated human remains next to their pet as long as the pet cemetery did not charge a fee for the human burial. The limitation in charging an additional fee makes providing this service less desirable for the pet cemeteries to offer, and some are unwilling to incur the additional costs of the extra burial for no additional payment. Now, a new regulation is headed to the state senate that would allow the pet cemeteries to charge a fee for the service

See, Pets and Humans May Be Buried in Same Cemetery, Fox 23 News, June 18, 2014.

Special thanks to Barry Seltzer (Estate Planner) for bringing this article to my attention.

July 18, 2014 in Death Event Planning, New Legislation | Permalink | Comments (0) | TrackBack (0)

Uniform Fiduciary Access to Digital Assets Act

ComputerThe Uniform Law Commission has approved the new Uniform Fiduciary Access to Digital Assets Act. With huge technology advancements changing where assets are stored, a legal update is needed to accommodate the increase in digital assets. The Act adopts “media neutrality”, which means that the individuals who would gain access to tangible property as a fiduciary after the owner dies, such as personal representatives, or during the owner’s life, such as a guardian, will now also have access to the digital assets. However, if the owner has previously expressed a desire that the assets be kept private, then those wishes will be honored.

See, Uniform Fiduciary Access to Digital Assets Act Approved, Uniform Law Commission, July 16, 2014.

July 18, 2014 in Estate Administration, Estate Planning - Generally, Guardianship, New Legislation | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

Treasury Department Issues Final Regulations for QLACs

Books & GavelFinal regulations for qualified longevity annuity contracts (QLACs) have been issued by the Treasury Department. The final regs expand access to QLACs for those that wish to include them in their retirement plan. The regulations allow individuals who accidentally exceed limits to correct the error. The final regs also create a “return of premium” option, which allows for previously paid but uncollected funds to go back to the account when the account holder dies.

See Robert Bloink & William H. Byrnes, Final Longevity Annuity Regulations Clear Path for Future Growth, Life Health Pro, July 14, 2014.

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

July 17, 2014 in Estate Planning - Generally, New Legislation, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

New York Estate Tax Changes Fall Short of Goal

TaxAs I have previously discussed, New York enacted new estate tax laws that increased the state estate tax exemption. The state was motivated by a desire to prevent wealthy residents from moving to other states with lower estate tax. However the increased exemptions, which will reach an estimated $6 million by 2019, do not benefit estates that are worth more than 105% of the exemption amount, as the exemption will no longer apply to those wealthier estates.

There is more bad news for wealthy estates in New York. The new estate tax does not adopt the concept of portability, and gifts made within three years before death that are more than the $14,000 annual exclusion will be taxed under a newly created state estate tax.

See Robert W. Cockren et al., New York State Reduces its Estate Tax for Some, Increases it for Others, Mondaq, July 14, 2014.

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

July 17, 2014 in Estate Planning - Generally, Estate Tax, New Legislation | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 16, 2014

New Self-Settled Asset Protection Trust Law

Money SafeMississippi recently enacted legislation that now allows self-settled asset protection trusts. The Mississippi Qualified Disposition in Trust Act permits the grantors to be trust beneficiaries in some situations. Here are some of the requirements to create such a trust under the new law and receive the creditor protection that comes with it:

  • The trust must be irrevocable
  • The settler is limited in the types of interest they may retain
  • A “qualified affidavit” must be signed by the settler
  • A liability insurance policy must be created for the trust

See Daniel G. Worthington & Mark Merric, Mississippi Enacts Self-Settled Asset Protection Trust Legislation, Wealth Management, July 15, 2014.

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

July 16, 2014 in Estate Planning - Generally, New Legislation, Non-Probate Assets, Trusts | Permalink | Comments (0) | TrackBack (0)