Wills, Trusts & Estates Prof Blog

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

Tuesday, September 22, 2015

California Joins Texas By Introducing Transfer On Death Deed

CaliforniaBeginning January 1, 2016, California will allow Transfer on Death Deeds which grant the ability to transfer real property at death without having to go through probate. Assembly Bill 139 requires that a revocable TOD deed be signed, dated, acknowledged, and recorded in order to be effective. The legislature stated that the reason behind the change is the high cost of using an attorney to prepare an estate plan and the prohibitive cost of probate. Transfer on Death Deed join Payable on Death forms which, between the two, allow Californians to easily transfer real property and most types of personal property without having to use the court system.

See Mark Kellem, Gov. Brown signs bill to make home transfers easier after death, Glendale News-Press, September 21, 2015.

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

September 22, 2015 in Current Affairs, Current Events, New Legislation | Permalink | Comments (0)

Monday, September 21, 2015

Texas Adds Transfer At Death Deeds To Estate Code

TexasThe 2015 Texas Legislature added Section 114 to the Estate Code which authorizes Transfer on Death Deeds in the state. A TOD Deed is a when the intended beneficiary of the property upon the owner's death may be noted on the deed itself and filed with the county clerk to allow the property to pass without using intestacy or a will. This is advantageous since it allows the estate to avoid probate especially since many people who will use a TOD deed only have one major asset to pass, usually a home, and do not need the expense of a probate courts. This is a brand new concept in Texas so, going forward, the estate law community will be watching how this effort will play out for those it is intended to help.

See, Transfer on Death Deeds Now Valid in Texas, National Law Review, September 18, 2015.

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

September 21, 2015 in Estate Planning - Generally, New Legislation, Non-Probate Assets | Permalink | Comments (0)

Friday, September 18, 2015

Texas Makes Major Changes To Guardianship Law

TexasThe 2015 Texas Legislature made significant changes to the Estate Code which now calls for alternatives to complete guardianship be contemplated by a court. Before a guardian can now be appointed there must be a showing by clear and convincing evidence by the party seeking guardianship that alternatives have been considered and rejected as being unfeasible under the circumstances. In addition, the new legislation places more power into the hands of a ward by requiring the court to consider the ward's views on the proposed guardian as well as giving the ward, or an interested person, to right to petition for a restoration of rights be it full or partial. Lastly, a new chapter was added which proclaims a "bill of rights" which allows wards to raise any issue with the court which violates the bill of rights.

See Deborah C. Hiser, Texas is the first state to recognize supported decision-making as alternative to guardianship, Lexology, September 15, 2015.


September 18, 2015 in Guardianship, New Legislation | Permalink | Comments (0)

Monday, August 24, 2015

Article On 2015 Texas Estate Planning Legislation

Texas FlagGerry Beyer (Professor of Law, Texas Tech University School of Law) recently published an article entitled, 2015 Texas Estate Planning Legislative Update. Provided below is an abstract of the article:

This article reviews the highlights of the legislation enacted by the 2015 Texas Legislature relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. Some of the key topics include judicial modification and reformation of unambiguous wills, trust protectors, and the Texas versions of the Uniform Real Property Transfer on Death Act and the Uniform Disclaimer of Property Interests Act.

August 24, 2015 in Articles, Current Affairs, New Legislation | Permalink | Comments (0)

Tuesday, August 18, 2015

European Union Issues New Inheritance Rules

European UnionNew rules have gone into effect in the European Union which will allow individuals to opt to use the inheritance laws of their nationality rather those of the country in which they died or created the will. Courts in the country the will is probated must follow the rule of law of the jurisdiction that was chosen in the will which is intended to smooth cross border inheritance. The law will apply to all who die after August 17, 2015  in member states except in Denmark, Ireland, and the United Kingdom.

See, New EU inheritance rules now in force, The Connexion, August 17, 2015.

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

August 18, 2015 in Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0)

Monday, July 27, 2015

Article On Refinements To The Uniform Fraudulent Transfer Act

Article PictureGary A. Foster & Eric C. Boughman (Forster Boughman & Lefkowitz) recently published an article entitled, The Uniform Voidable Transactions Act: An Overview of Refinements to the uniform Fraudulent Transfer Act, 29 Probate & Property 4 (July/August 2015). Provided below is an excerpt from the article:

The most noticeable change made in the UVTA is the absence of the word “fraudulent” from the title and body of the act. In the UFTA, “fraudulent” and “voidable” are used inconsistently to refer to transactions for which the act provided a remedy. UVTA replaces “fraudulent” with “voidable” to clear up the inconsistency. Another purpose of the change is to discourage the “oxymoronic usage” of the phrase “constructive fraud” and the misleading phrase “actual fraud.” UVTA § 14, cmt. 1. The use of these phrases perpetuates the confusion and inconsistent application of the act among the courts. The prior language is also inappropriate because “constructive fraud” is confusing, and what is deemed actual fraud (under UVTA § 4(a)(1)), does not actually require proof of fraudulent intent.

July 27, 2015 in Current Affairs, New Legislation | 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

Special Needs Trust Fairness Act Reintroduced In Congress

CapitolAfter failing to pass in the last legislature, the Special Needs Trust Fairness Act was reintroduced by a bipartisan group of Congressman. Specifically, the act applies to first-party special needs trusts which are trusts that are established using the incapacitated person's own assets to provide additional financial support while they are receiving certain government benefits. Current law requires that the first-party trust be requested by guardians or the court with the new legislation seeking to allow an otherwise mentally competent individual to set up a first-party trust without the intervention of any other party. Proponents of the bill argue that forcing a person to seek a family member or court to set up this type of trust imposes an unnecessary burden without any benefit.

See David H. Lenok, Spotlight: The Special Needs Trust Fairness Act of 2015, Wealth Management, July 22, 2015.

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

July 24, 2015 in Disability Planning - Property Management, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Saturday, July 11, 2015

Super Wealthy Families Behind Drive To Repeal Estate Tax?

Piggy BankThe repeal of estate taxes at the federal and state level has become a hot button political issue on both sides of the aisle. The House of Representatives recently voted to repeal the tax although the Senate has failed to take up the legislation and the Obama administration has indicated it would veto in any case. But who is behind this push to repeal? A new report indicates that a handful of billionaire families have donated millions per year to repeal the tax and stand to retain vast amounts of money if their estates were not taxed. However, the justification for repeal is often based on the harm small business may suffer with the tax although there are many options offered to small firms to cope with paying the tax. Ultimately, any debate on estate tax repeal must keep in mind that it will likely benefit a small number of people and offer little relief to the small businesses of the world who are supposed to be protected.

See Susan Harley, Who is behind the push to repeal the estate tax?, The Hill, July 8, 2015.

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

July 11, 2015 in Current Affairs, Current Events, Elder Law, New Legislation | Permalink | Comments (0)

Friday, July 10, 2015

Big Changes To Nevada Estate And Trust Code

Article PictureRecently, the Nevada legislature conducted an update of their estate and trust laws when SB484 was signed by the governor. Below is a summary of some of the key updates from this new legislation:

  • The ability to decant from one trust to another has been altered to allow a transfer as long as the trust did not pay interest under IRC § 2702 or qualified for a marital or charitable deduction. This change, among many potential uses, will allow trust that have mandatory distributions of income to be decanted to avoid creditors gaining a claim on an asset that was distributed to the beneficiary.
  • Trust that had been decanted into another were prohibited from adding any new beneficiary to the second trust under old law. Now, the trustee of the new trust may add to the current beneficiary pool anyone that was a present or future beneficiary under the old trust.
  • Nevada law has been clarified concerning the transfer of trust situs from other states and now clearly states that trust that move will be governed under Nevada law and take advantage of the laws of the state.
  • Non-judicial settlement agreement are now allowed to change the terms of a trust, in certain circumstances outline in the new statute, with the agreement of all indispensable parties.

See Kristen Simmons, Nevada Legislature Allows for Greater Flexibility with Irrevocable Trusts, Trust Advisor, June 17, 2015.

July 10, 2015 in Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)