Wills, Trusts & Estates Prof Blog

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

Monday, December 5, 2016

Cuba Will Ban Monuments Named After Fidel Castro

Fidel castro statuteCuban President Raul Castro declared that his government will not allow the naming of streets or public monuments after Cuba’s former leader, Fidel Castro, keeping with his brother’s desire to avoid a personality cult. In fact, the country’s National Assembly will pass a law fulfilling his brother’s wishes. Conversely, some revolutionary fighters who fought alongside Fidel have their likeness spread across Cuba. This announcement comes at the tail end of Fidel’s four-day public mourning period.

See Raul Castro: Cuba Will Ban Naming of Monuments After Fidel, Fox News, December 3, 2016.

December 5, 2016 in Current Events, Death Event Planning, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Sunday, December 4, 2016

Article on the Uniform Partition of Heirs Property Act

UPHPAThomas W. Mitchell recently published an Article entitled, Restoring Hope for Heirs Property Owners: The Uniform Partition of Heirs Property Act, State & Local Law News 6 (2016). Provided below is an abstract of the Article:

This Article provides a summary of the legal problems a diverse group of common property owners have experienced with the law of partition as that law applies to tenancy-in-common properties. Many of these property owners refer to their ownership as heirs property, which is attributable to the fact that most of the fractional interests in such property are transferred by intestacy. A large number of heirs property owners have lost their property over the course of the past several decades as a result of courts that have ordered forced, partition sales of their property. The Article further provides an overview of the Uniform Partition of Heirs Property Act (UPHPA), a uniform act promulgated by the Uniform Law Commission in 2010 and approved by the American Bar Association for consideration by the states. The UPHPA represents the most significant reform of partition law in modern times and is designed to make heirs property ownership more secure and to better preserve the real estate wealth of heirs property owners in those instances in which a court does order a partition sale. The Article also provides an overview of the enactment record noting that the UPHPA has now been enacted into law by eight states -- in many different regions. This solid enactment record is quite surprising given that those most negatively impacted by the extant partition law have been poor and disadvantaged property owners, many of whom have been racial and ethnic minorities. The Article details the background of South Carolina's enactment in particular, in part because South Carolina has been considered for several decades to be ground zero for partition action abuses and because it was widely considered to be one of the states in which legislators would most fervently resist any effort to reform partition law. Finally, the Article identifies several additional state legislatures that may consider the UPHPA in the near future, including legislatures in Mississippi, New Mexico, Tennessee, Texas, and West Virginia.

December 4, 2016 in Articles, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Saturday, November 26, 2016

New Mexico Updates Trust & Estate Legislation

New mexicoNew Mexico has updated its trust and estate legislation in 2016. The state has amended the Uniform Statutory Rule Against Perpetuities, abolishing the rule for personal property held in trust and extending the time period to 365 years for real property held in trust. § 45-2-904 (A)(8), (B), New Mexico Statutes Annotated (NMSA). Additionally, New Mexico has adopted the Uniform Trust Decanting Act (§§ 46-12-1 et seq., NMSA) and the Uniform Powers of Appointment Act (§§ 46-11-1 et seq., NMSA). Finally, in its revision, New Mexico has made the Uniform Probate Code more uniform (§§ 45-1-1 et seq., NMSA).

Special thanks to Jack Burton (Attorney, Rodey Law) for bringing this information to my attention.  

November 26, 2016 in Current Events, Estate Planning - Generally, New Legislation, Trusts, Wills | Permalink | Comments (0)

Thursday, November 10, 2016

Proposed Fiduciary Rule to Survive Trump Presidency

TrumpSo much is still unknown about President-elect Donald Trump’s plans for our country, but most are hopeful, or fearful, that there will be major changes. Most are concerned over what will happen with the impending Department of Labor’s fiduciary rule for advisors to retirement accounts. Trump’s win sees the possibility of repeal, changing the outlook of the industry. Ultimately, the possibility of imposing a uniform fiduciary standard seems remote with its immediacy, but the proposed rule for making business succession plans mandatory will most likely propel.

See David Armstrong, Fiduciary Rule Likely to Survive Trump Presidency, Wealth Management, November 9, 2016.

November 10, 2016 in Current Events, Estate Planning - Generally, New Legislation, Professional Responsibility | Permalink | Comments (0)

Wednesday, November 9, 2016

Amended SNT Fairness Act Passes the House, Now for the Senate

SntOn September 20, the House overwhelmingly passed the updated version of the Special Needs Trust Fairness Act. The final hour before its passage saw much opposition and concern. Both the House and the Senate passed the underlying language of the SNT Fairness Act. The House, however, added additional language that will need to be reviewed by the Senate before making it to the President’s desk. With the election over, the National Academy of Elder Law Attorneys is looking to work with the Senate to pass this amended bill.

See Amended SNT Fairness Act Overwhelmingly Passes House Despite Row, National Academy of Elder Law Attorneys, Inc., October 4, 2016.

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

November 9, 2016 in Current Events, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Monday, October 31, 2016

DING Trust Rulings Analysis

Ding trustPLR 20146014 addressed all the relevant rulings to the tax structure of a DING trust. However, there was one major factual difference compared to what the IRS ruled—if there are fewer than two members serving on the Distribution Committee (or if Child 1 and Child 2 are no longer serving), then the trust terminates and all the property is distributed back to the settlor. In PLR 20146014, the IRS ruled that this trust is a nongrantor trust. Subsequently, in In PLR 201642019, the IRS revoked that ruling, stating that the trust provision addressing the termination acts as a reversion.

 See Analysis of DING Trust Rulings PLR 201426014 and PLR 201642019, Morris Nichols Arsht & Tunnell, October 28, 2016.

October 31, 2016 in Current Events, New Legislation, Trusts | Permalink | Comments (0)

Tuesday, October 25, 2016

Terminally Ill Mom Wants to be the Face of the Right to Live Movement

Right to liveStephanie Packer, a terminally ill mom of four, wants to be the face of the Right to Live movement, opposing the well-known Right to Die movement. Recently, Packer’s home state of California passed the law permitting doctor-assisted suicide, allowing terminally ill patients to forgo a painful end of life. Packer, however, wants to fight to live before ultimately accepting a natural end. She wants her kids to know that death is a part of life. 

See Terminally Ill Mom Denied Treatment Coverage— but Gets Suicide Drug Approved, Fox News: Health, October 24, 2016. 


October 25, 2016 in Current Events, Death Event Planning, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Article on Trends in Trust Law That Undermine Fiduciary Accountability

Trust fiduciaryAlan Newman recently published an Article entitled, Trust Law in the Twenty-First Century: Challenges to Fiduciary Accountability, 29 Quinnipiac Prob. L.J. 261 (2016). Provided below is a summary of the Article:

This Article analyzes recent legislative trends in trust law that undermine--sometimes intentionally and sometimes inadvertently--fiduciary accountability in the administration of trusts. A primary focus in this analysis is the growing use of third parties, often referred to as “advisers” or “protectors,” who are authorized to exercise control over the trustee's administration of the trust, and newly enacted statutes addressing their use in many jurisdictions. But fiduciary accountability for trustees has been weakened in recent years by state legislatures in a variety of other ways. Before turning to recent legislation addressing trust advisers and protectors, this Article examines statutes addressing: (i) exculpatory clauses; (ii) the trustee's duty to account; (iii) the limitations period for a beneficiary to pursue a claim against a trustee for breach; (iv) the trustee's duty of loyalty; (v) the nature of a beneficiary's interest in a discretionary trust; and (vi) trust decanting.


October 25, 2016 in Articles, Estate Planning - Generally, New Legislation, Professional Responsibility, Trusts | Permalink | Comments (0)

Wednesday, October 5, 2016

D.C. Assisted Suicide Legislation Faces Vote Today

D.c.Today, legislation that allows doctors to help terminally ill residents in D.C. to end their lives will face a crucial vote. Proponents of physician-assisted suicide are hopeful that the nation’s capital will be the next jurisdiction to allow this controversial piece of legislation. The proposal is modeled after Oregon’s system for assisted suicide with the same requirements. Ultimately, the legislation faces uncertain progression if it advances to the full council. 

See Fenit Nirappil, Assisted Suicide Legislation Faces Key Vote in D.C. Council, Washington Post, October 4, 2016. 

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


October 5, 2016 in Current Events, Death Event Planning, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Thursday, September 29, 2016

New Rev. Proc. Allows QTIP Election with Portability Election

Qtip elecitonThe 2010 amendment of IRC § 2010(c) allowed an estate executor to make a portability election; therefore, influencing the decision to make a qualified terminable interest property (QTIP) election. A QTIP election reduces the decedent’s taxable estate, further maximizing the amount of unused exclusion available for the decedent’s surviving spouse. Accordingly, the executor electing portability of the decedent’s unused applicable exclusion amount may wish to make a QTIP election, regardless of whether the QTIP election reduces the estate tax liability to zero.  

Rev. Proc. 2001-38, 2001-24 I.R.B. 1335 details a procedure for which the IRS will disregard and nullify federal estate, gift, and generation-skipping transfer tax for purposes of a QTIP election made when the election was unnecessary to reduce the estate tax liability to zero. With the use of portability elections, the ability to void and nullify QTIP elections in Rev. Proc. 2001-38 may bring questions over the ability of the decedent’s estate to make an unnecessary QTIP election for the sake of maximizing the available unused exclusion amount. Subsequently, this revenue procedure modifies and supersedes Rev. Proc. 2001-38. It confirms the IRS procedures for disregarding a QTIP election, but excludes those estates that made a portability election in accordance with § 2010(c). 

See 26 CFR 601.201: Rulings and Determination Letters; Rev. Proc. 2016-49.


September 29, 2016 in Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, New Legislation | Permalink | Comments (0)