Wills, Trusts & Estates Prof Blog

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

Wednesday, January 11, 2017

Article on Key Themes in Estate Planning for 2016

Estate planning 2016Barbara R. Hauser recently published an Article entitled, Watching and Waiting: Two Key Themes in the United States and Abroad, Tr. & Est. 56 (Jan. 2017). Provided below is a summary of the Article:

The year 2016 felt like a year “on alert,” “on pause” and both. Global unrest, an increase in nationalism, a year-long bitter election process in the United States, millions of migrants and refugees worldwide, Britain’s surprising vote to leave the European Union (Brexit) and, at the end of the year, the United States electing a completely new type of leader all contributed to an anxious year generally around the world. 

Maybe these high level preoccupations explain why the lower level, less complicated world of trusts and estates practice was fairly quiet. The lack of significant new legislation is also due to the “lame duck” end of the term of the U.S. President. For estate planners in the United States, the biggest news was probably having proposed regulations on valuation discounts for family assets. 


January 11, 2017 in Articles, Current Events, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Tuesday, January 3, 2017

Article on Applying Obergefell

Obergefell applicationLee-ford Tritt recently published an Article entitled, Moving Forward by Looking Back: The Retroactive Application of Obergefell, 5 Wisconsin L. Rev. 873 (2016). Provided below is an abstract of the Article:

The recent Supreme Court decision of Obergefell v. Hodges has forever altered American jurisprudence. Not only did this decision make same-sex marriage legal in all fifty states, but it also required states to recognize same-sex marriages from other states in accordance with the 14th Amendment. The Court’s holding in Obergefell raises a fundamental question with serious legal and financial significance: when exactly do these once unrecognized marriages legally begin? And to what extent must courts apply Obergefell retroactively? The stakes are high and substantive financial effects are pending on the answer to this question — for, with marriage, comes wide-ranging rights and obligations. The decision will predominately impact the realm of real property law, property succession law, employment benefits, and family law. There currently are, and will continue to be, complicated lawsuits concerning the potential retroactive vestment of marital property rights for same-sex married couples, which may also impact third parties such as purchasers, mortgagees, and title insurers. Unfortunately, the Obergefell decision provided no guidance on its retroactive application. Therefore, this Article articulates and defends a rich positive and normative jurisprudential framework through which to analyze the rapidly growing number of real property, trusts and estates, and employment benefits disputes that continue to be initiated in the wake of the Obergefell decision. More importantly, this Article will proffer specific, effective, and tailored remedies to resolve subtle, but important, variances in these rapidly growing number of disputes. This Article is the first to examine the retroactivity of Obergefell as it applies to trusts and estates and property issues.

January 3, 2017 in Articles, Current Events, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Sunday, December 25, 2016

The Elimination of Stretch IRAs

Stretch IRAThe Senate Finance Committee voted 26–0 to eliminate the stretch IRA for non-spousal beneficiaries. Currently, using a stretch IRA limits required distributions for inherited IRAs, avoiding a substantial tax bill in the process. An account holder can name a child, grandchild, or great-grandchild instead of a spouse, allowing withdrawals to stretch out over time and accumulation of tax deferred growth. The new proposed bill—the Retirement Enhancement and Savings Act—requires beneficiaries of an inherited IRA to pay all taxes within five years of the account holder’s death. This stretch IRA elimination will likely be inserted into a tax reform bill during Trump’s presidency. If the bill does pass, many financial advisors will need to retool their clients’ estate plans. Life insurance trusts and charitable remainder trusts are sufficient alternatives to stretch IRAs for wealthy clients. 

See Ian Shearn, Stretch IRA: Are Its Days Numbered?, Financial Advisor, December 23, 2016. 

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


December 25, 2016 in Current Events, Estate Planning - Generally, Estate Tax, New Legislation, Trusts | Permalink | Comments (0)

Monday, December 19, 2016

Special Needs Fairness Act Officially Becomes Law

Special needs lawOn December 13, 2016, President Obama signed the Special Needs Trust Fairness Act into law. By adding “the individual” to an existing statute, over two decades of unfair treatment to disabled individuals was ended by allowing them to create their own self-settled special needs trusts. This Act empowers capable disabled individuals, who no longer have immediate family members living, to make their own decisions and not be forced to rely on others for their advocacy. 

See Bernard A. Krooks & Amy C. O’Hara, Special Needs Trust Fairness Act Becomes Law, Wealth Management, December 16, 2016. 

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


December 19, 2016 in Current Events, Disability Planning - Health Care, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Thursday, December 8, 2016

The Tax Change Agenda

Trump tax planWith Donald Trump and a Republican Congress, it is likely we will see lower tax rates and a broader taxable income base. Republicans will, however, need to compromise on some core objectives. This Article provides the “Potential Tax Change Timeline” to some expected bills, debates, and legislation. Additionally, there is a “ Tax Change Watchlist” organized into three categories—individual income tax, corporate and pass-through income tax, and transfer tax—giving insight into the major changes detailed in Trump’s proposals.

See J.P. Morgan Advice Lab, The Tax Change Agenda: What’s Been Proposed—and Our Insights into What That May Mean for You, J.P. Morgan Private Bank (2016).

December 8, 2016 in Current Events, Estate Planning - Generally, Estate Tax, Income Tax, New Legislation | Permalink | Comments (0)

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)