Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Wednesday, October 1, 2014

Delaware Guardianship Rule Change

LawNew amendments to the rules for Delaware courts' regarding court-appointed guardianship requirements became effective on September 19. The amendment changes the requirements of Court of Chancery Rule 180. A court-appointed guardian is no longer required for a minor if their property at issue is valued at $25,000 or less.

See Carl Neff, Chancery Amens Guardianship Rule 180, Delaware Chancery Law Blog, Sept. 28, 2014.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

October 1, 2014 in Guardianship, New Legislation | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 30, 2014

U.S. Requires Assistance to Enforce FATCA

PuzzleAs I have previously discussed, the U.S. government has shown a strong commitment to investigating violations and enforcing compliance with the Foreign Account Tax Compliance Act (FATCA). The global anti tax-evasion law that requires foreign financial institutions to reveal account information of wealthy U.S. citizen owned accounts, requires international corporation to effectively enforce. Since refusal to cooperate with the U.S. in FATCA enforcement could result in inability to participate in U.S. markets, participation has been widespread across the globe. However, concern over Canada's commitment to enforcement has arisen due to recent staff and budget cuts that affect Canada's Revenue Agency.

See Robert W. Wood, Armed With FATCA, IRS Hunts Offshore Tax Evaders, While Canada Eases Up, Forbes, Sept. 22, 2014.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

September 30, 2014 in Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2014

Plans to End 'Death Tax' on British Pension Inheritance

Tax CutIt is expected that George Osborne, British politician and Chancellor of the Exchequer, will announce in April an end to the “death tax” for drawdown pensions passed on as inheritance after the accountholder dies. The new plan will abolish the current marginal rate tax if the accountholder dies before reaching age 75 and will reduce the taxes from 55% to the marginal income tax rate if the accountholder is over 75-years-old at death. The new plan, which is intended to assist with economic growth, is planned to be announced at the Conservative Party conference in Birmingham prior to May elections.

See Peter Dominiczak, George Osborne Scraps the 'Death Tax', The Telegraph, Sept. 28, 2014.

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

September 29, 2014 in Current Affairs, Current Events, Estate Planning - Generally, Estate Tax, New Legislation | Permalink | Comments (0) | TrackBack (0)

Saturday, September 27, 2014

Indictment Shows Strong Commitment to FATCA Enforcement

GAVELAs I have previously discussed, the Foreign Account Tax Compliance Act (FATCA), was enacted in 2010 and requires that foreign banks and other financial institutions report large accounts held by U.S. account holders. The U.S. government's commitment to enforcing FATCA requirements was demonstrated in the recent indictment of financial managers and others allegedly involved in an offshore money laundering scheme for the benefit of their U.S. clients. The case is the result of a complex sting operation that began in 2012 and involved collaboration efforts of multiple government agencies.

See Miriam L. Fisher and Brian C. McManus, Bandfeild Confirms Aggressive FATCA Enforcement Tactics, JD Supra, Sept. 17, 2014.

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

September 27, 2014 in Estate Planning - Generally, Income Tax, New Cases, New Legislation | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 23, 2014

Canada Eases Up on Tax Evaders

Canada:America

In a move related to budget cuts, Canada’s Revenue Agency is cutting its top staffed focused on international tax evasion.  The move raises concerns that the Canadian government’s crackdown on offshore tax cheats may be all talk.  However, Canada has gone to great lengths to prove that it is going after evaders, most significantly, Canada signed onto FATCA, the Foreign Account Tax Compliance Act, America’s global tax law.

A lawsuit has recently been filed against the Canadian Attorney General challenging the constitutionality of Canada’s FATCA agreement with the United States.  The legal claim is that the agreement violates provisions of the Canadian Charter of Rights and Freedoms.  That document enumerates the right to life, liberty, security of person; security against unreasonable search and seizure; and equal protection of law without discrimination.  This is a serious charge and the allegation that Canada’s FATCA agreement soars in the face of the “principle that Canada will not forfeit its sovereignty to a foreign state.”  Yet for now, due to the fact that Canada signed FATCA, the IRS will receive the data.

See Robert W. Wood, Armed With FATCA, IRS Hunts Offshore Tax Evaders, While Canada Eases Up, Forbes, Sept. 22, 2012. 

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

September 23, 2014 in Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0) | TrackBack (0)

Yahoo Criticizes Digital Asset Legislation

Yahoo

Many questions arise when it comes to addressing what should come of our personal digital communications after we die?  Should they be treated like physical letters for the purposes of a will?

Yahoo does not think so.  The company is now criticizing new legislation that gives executors charged with carrying out the instructions in a person’s will broad access to their online accounts.  Delaware recently passed legislation titled the “Fiduciary Access to Digital Assets and Digital Accounts Act.”  The measure removes some of the red tape that an estate attorney or other fiduciary would otherwise have to go through to gain broad access to the deceased’s online accounts. 

In a recent blog post, Yahoo stated that the expanded access violates the initial agreement users entered into when they started using services.  “When an individual signs up for a Yahoo account, they agree to our terms of service, which outlines that neither their account nor the contents of their private communications are transferrable at the time of death.” 

Yahoo’s terms of service say it may delete an account and all of the data if it is shown a copy of the person’s death certificate.  The company argues that the new legislation does not offer the correct means to providing a family or fiduciary the information they need when dealing with the loss of a relative.   

See Zach Miners, Yahoo Slams New ‘Digital Will’ Law, Says Users Have Privacy When They Die, PC World, Sept. 15, 2014.

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

September 23, 2014 in Estate Administration, Estate Planning - Generally, New Legislation, Technology | Permalink | Comments (0) | TrackBack (0)

Thursday, September 18, 2014

Slew of State Laws Scrutinize Surrogacy

Surrogacy

When Crystal Kelly signed a contract to bear a baby for a couple in Connecticut, a routine ultrasound five months later showed that the fetus had a cleft palate, a brain cyst and heart defects.  The couple subsequently asked Ms. Kelley to have an abortion, offering to pay her $10,000 to do so.  However, Ms. Kelley fled to Michigan, where surrogacy contracts are unenforceable and had the child.  She was listed on the birth certificate as the mother, and a family that had other special-needs children adopted the little girl. 

Although surrogacy is becoming more commonplace in the United States, it remains a polarizing issue.  Because there is no national consensus on how to handle it, states are free to do as they wish. 

Seventeen states have laws permitting surrogacy, but vary greatly in range and restrictions.  In many states, surrogacy is a taboo issue, drawing opposition from anti-abortion groups, opponents of same-sex marriage, the Roman Catholic Church, some feminists, and those who view surrogacy as an experiment with unforeseen consequences. 

Many states are now considering certain limits and trying to find middle ground.  “My sense of the big picture is that we’re moving toward laws like the one in Illinois, which accepts that the demand for surrogacy isn’t going away but recognizes the hazards and adds regulations and protections,” says Joanna L. Grossman, a family law professor at the Hofstra University Law School.  The Illinois law requires medical and psychological screenings for all parties before a contract is signed and stipulates that surrogates be at least 21, have given birth at least once before and be represented by an independent lawyer, paid for by the intended parties, thus, “eliminate[ing] some of the concerns about designer babies.” 

Lawmakers in New York, Washington D.C., and elsewhere are considering measures to allow surrogacy.

See Tamar Lewin, Surrogates and Couples Face a Maze of Laws, State by State, The New York Times, Sept. 17, 2014.

Special thanks to Jerome Borison for bringing this article to my attention. 

September 18, 2014 in Current Affairs, New Legislation | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 17, 2014

Financial Planning For Soldiers

Military

Four years ago, Army Sergeant Angelo Stevens almost took his own life in the wake of severe debts.  Although his survival inspired the passage of planning related legislation in the House intending to reduce military suicides, his family faced a new threat earlier this summer.

Stevens emailed his congressmen in June, “I am desperate.  I want nothing more than to stay where my family receives their care.”  Stevens’ landlords called to tell him that his house in Arlington, Virginia was headed into foreclosure, as the expense had grown too high.  Stevens needed to find a new home in sixty days, a difficult task for the sole provider of his family.

Stevens’ struggles are illustrative of the complex financial issues that many soldiers and veterans are facing.  Many soldiers experience costly divorces, legal troubles, problems at work, as well as many other challenges, which drive them to commit suicide.  

Financial planners who provide pro bono care work alongside other experts over a matter of years.  Lawyers and other experts in social services are generally brought in to assist in planning.  “There is a need for the team approach for sure . . . The lead person has to have a holistic approach to the problem . . . It has to be one person who takes a sincere total interest in this person.” 

See Ann Marsh, Team Planning Needed for Soldiers With Suicide Risk, Financial Planning, Sept. 16, 2014.

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

Tuesday, September 16, 2014

Colorado Enacts List of Prohibited Words in Insurance Advertising

AntiIn response to complaints about misleading words used in advertising for insurance products, such as life insurance and annuities, Colorado has enacted legislation that bans certain words. The words deemed misleading and banned by Colorado include “investment”, “savings”, “retirement plan”, “safe”, and “secure”, among other commonly used words in insurance advertising. Similar lists of words no longer allowed for advertising insurance plans are used in roughly 13 states, and based on model regulations created by the National Association of Insurance Commissioners.

See Roccy DeFrancesco, Colorado Bans Use of Word “Safe” in Life and Annuity Advertising, Producers Web, Sept. 9, 2014.

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

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

Friday, September 12, 2014

Eight States Usher in Changes to Estate Tax Laws

Where not to die

Although the count of death tax jurisdictions remains the same for 2015 (19 states and the District of Columbia), eight states are marshaling in changes in 2015.  These states are increasing the amount exempt from death tax, indexing the exemption amount for inflation, and eradicating “cliff” provisions that tax the first dollar of an estate.  Moreover, there is action taking place in New Jersey to keep up with the pack, “Gov. Chris Christie can’t run for President with the worst estate tax exemption in the country . . . He has to say he tried.”

New York and Maryland are making the largest changes.  The Maryland legislature acted first by gradually increasing the amount exempt from the state estate from $1 million this year, to $1.5 million in 2015, $2 million in 2016, $3 million in 2017, and $4 million in 2018. Finally, in 2019 it will match the federal exemption that is projected to be $5.9 million.

In New York, exemption amounts were doubled almost immediately.  Like Maryland but using a faster timetable, the New York exemption is set to rise gradually through 2019 to eventually match the federal exemption.  By April 1, 2017, the New York exemption will be $5,250,000. 

As other states continue to make changes, it is assured that there will be more changes on the state death tax map for 2016, if not before. 

See Ashlea Ebeling, Where Not to Die In 2015, Forbes, Sept. 11, 2014.

September 12, 2014 in Estate Planning - Generally, Estate Tax, New Legislation | Permalink | Comments (0) | TrackBack (0)