Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Monday, August 31, 2015

People Can Save Time By Using Social Security Online

Social security 3Dealing with the Social Security Administration (SSA) no longer involves having to wait in long lines if people know to utilize the option of handling Social Security business online.  Thanks to the my Social Security accounts people can now change direct deposit of their benefits, request a replacement Medicaid card, and even order SSA tax documents.  These are just some of the many services that any qualified person over 18 and possessing a valid email address can use.  People can also view their statement and correct any mistakes in the records.  Being able to review records and statements can also provide people with the tools they need to make wise retirement and investment decisions. 

See Wayne Fourman, Using Social Security Online: A real time-saver, USA Today, August 29, 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 31, 2015 in Current Affairs, Estate Planning - Generally, Non-Probate Assets, Web/Tech | Permalink | Comments (0)

Friday, August 28, 2015

IRA Charitable Rollover Excellent Benefit... If It Is Resurrected

TrustStarting in 2006, the IRS has allowed those over age 70 1/2 to make direct gifts to charity from their IRA account up to $100,000 per year. This rollover was a great benefit because it skipped the intermediate step of the funds being distributed to the taxpayer first, which created a tax liability, then having the after tax amount donated to charity. However, the authorization to allow this tax break expired in 2014 and, as of yet, has not been revived by Congress. But there is good news, using traditional methods of withdrawal from an IRA or other retirement account the taxpayer can still make the charitable donation without facing an additional tax liability. While alternative means are not as easy as under the old law, an individual can still fund their charitable activities while retaining many of the benefits the IRA rollover once allowed.

See Robert S. Sharpe Jr., Rolling With the Rollover, Wealth Management, August 27,2015.

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

August 28, 2015 in Estate Planning - Generally, Income Tax, Non-Probate Assets | Permalink | Comments (0)

Monday, August 24, 2015

Woman Indicted For Hiring Ex-Con To Kill Ex-Spouse

OregonAn Oregon woman was indicted by a Federal grand jury on four-counts for allegedly trying to hire an ex-con to murder her ex-husband.  According to the charges, Pamela Jean Gygi attempted to hire an ex-con, who is identified in court records as “CW” (cooperating witness), to murder her former spouse Dean Hamill.  The former wife’s motive for the attempted murder appears to be a $100,000 life insurance policy that the husband took out as part of the divorce decree.  Gygi’s murder plot seems to have fallen apart when the ex-con who she hired went and warned the husband of his former wife’s intentions.  Hamil then went and notified the police when he learned about the plan. 

See Bryan Denson, U.S. indicts woman for allegedly hiring ex-con to knock off ex-husband, The Oregonian, August 21, 2015.

August 24, 2015 in Current Affairs, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Estate Planning Considerations For Military Members

MilitaryMilitary veterans account for millions of the population and have special benefits due to their service making retirement planning for the group unusual. However, there are some simple tips that every estate planner can follow that can make planning for a veteran easier:

  • Military pensions are guaranteed and should be treated as a low risk asset when planning. As a result, other assets may be safely invested in portfolios that have a greater potential risk but also return.
  • Make sure the service member is aware of the Survivor Benefit Plan. The plan must be opted into within three years of retirement and a premium paid in order to guarantee a percentage of the income stream for a surviving spouse or qualified dependent including disabled adult children. 
  • Run the numbers to test if the Serviceman’s Group Life Insurance policy is worth opting into. Private plans might offer better returns but the SGLI might be the better option is the client is suffering from poor health or other issues that increase the cost of a private plan.

See Wilson Moy, Unique Estate Planning Considerations for Members of the Military, Wealth Management, August 21, 2015.

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

 

August 24, 2015 in Estate Administration, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Wednesday, August 19, 2015

CLE On Digital Data After You Die

CLE PictureThe American Bar Association is presenting a CLE entitled, Privacy, Probate, and What Happens to Your Digital Data after You Die?, Tuesday September 22, 2015, 1:00-2:30pm Eastern, online.  Here are some details about the event:

As Americans increasingly live their lives online, they are leaving more and more data behind in digital form when they die. Should families be able to retrieve the digital data of loved ones? Under what circumstances?
 
Can probate lawyers and estate executors get access to the deceased digital data and, if so, how? How are social media handling the many requests for access to digital data, and can such access be provided consistent with the Electronic Communications Privacy Act and other laws? To address this, the NCCUSL has drafted the Uniform Fiduciary Access to Digital Data model law, which the ABA approved in August 2014. Some have criticized the UFADDA as insufficiently protective of privacy interests, and have advocated a competing measure known as the PEAC.

August 19, 2015 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Monday, August 17, 2015

What Clients Should Know About Avoiding Probate

Probate-real-estatePeople who are planning their estate need to ask if they wish to avoid probate.  The process of clearing title to a piece of property when a person dies so that it can be transferred is known as probate.  Attempting to avoid probate takes time and energy, but there are some benefits.  Avoiding probate can save the client money on general court costs like attorney and filing fees.  It can reduce the complexity of transferring the estate and help better protect a client’s privacy.  Many clients may want to avoid having their Will contested, and avoiding probate is a way to reduce the chances of a Will being contested.  There is an administrative burden of having to update all of the necessary legal documents.  A competent financial advisor can help a client walk through many of the complex issues surrounding the probate process.

See Tracy Craig, Should Clients Avoid Probate? 5 Factors To Consider, Financial Planning, August 16, 2015.

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

August 17, 2015 in Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Monday, August 10, 2015

Article On Substantive Equity Under ERISA

Article PictureJames F. Parker (Washington & Lee School of Law) recently published an article entitled, Revival of substantive equity: increased household risk, safety valve litigation, and availability of the ERISA stock drop jury, 21 Wash. & Lee J. C.R. & Soc. Just. 425-470 (2015). Provided below is an excerpt from the article:

This Note’s examination begins with a review of the social justice concerns that underpin the modern ERISA system and a brief study of the common law of trusts, which together facilitate the Note’s first conclusion — trust law is fundamental to the foundation of the ERISA remedial regime. This Note will next examine the line of Supreme Court cases that courts use to determine whether a claim is equitable or legal for purposes of the Seventh Amendment and ERISA. Third, our case study begins with a summary of Hellman v. Cataldo, in which a Missouri district court found that the 401(k) pension plan beneficiary plaintiff was constitutionally entitled to a jury trial. Finally, after examining the District Court’s reasoning in Hellman, this Note will examine several important questions that emerge from the opinion’s reasoning and ultimately conclude that, despite ERISA’s social injustice origins, no constitutional jury trial right exists for pension plan participants bringing section 502(a)(2) stock drop class actions.

August 10, 2015 in Articles, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Saturday, August 8, 2015

ERISA Rules To File A Denial Of Benefits Claim Against An Employer

Labor DepartmentERISA, the federal law that dictates certain conduct between beneficiaries and employee benefit plan administrators, has a reputation as being one of the more difficult statutes to litigate. Under the law, a beneficiary that is denied a claim has the right to seek judicial review at the federal level, although, the standard of review differs greatly. For any plan that provides discretion to the administrator, a court must review using the abuse of discretion standard, otherwise the denial will be review de novo by the court with no deference given to the actions of the plan administrator. This distinction is critical since abuse of discretion is almost always the standard applied and puts the burden on the plaintiff to show the decision was improper. If a client is engaged in an ERISA based retirement dispute, check the plan documents to see what discretionary authority is granted to the administrator. Finding a plan that failed to grant discretionary authority is of great benefit to an employee/plaintiff and greatly increases the odds of a favorable result in any lawsuit.

See Brian Spiro, How to Challenge A Denial Of Benefits Under ERISA, Retirement Plan Lawyer, August 6, 2015.

August 8, 2015 in Estate Administration, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Thursday, August 6, 2015

Scandal Makers Show How To Protect Assets From Creditors

ArticleO.J. Simpson has been in the news for decades, long before his name become synonymous with brutal slayings and side show trials. As a result, he amassed considerable wealth that became venerable after being slapped with massive civil damages for the deaths of Nicole Brown and Ron Goldman. However, while he has lost most everything else, his lucrative pension from the NFL has never been under threat by his many creditors. This is due to the fact that under ERISA employer sponsored retirement plans, such as a 401(k), cannot be touched by creditors. However, this protection has a limit as the money must remain in the employer retirement account, or an IRA that has not been commingled with other funds, or else the protection is limited or lost. As a result, anyone who feels they might be subject to attack by creditors should think twice before moving funds away from an ERISA covered plan. While other retirement funds might offer other benefits, none will grant the creditor protection employer sponsored plans will receive. Just look at O.J. Simpson for proof.

See Martin Walsh, How O.J. Simpson and Lance Armstrong Protected Their Millions, Wealth Management, August 4, 2015.

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

August 6, 2015 in Estate Administration, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Tuesday, August 4, 2015

Girl Adopted By Stepfather Entitled to Biological Father's Retirement Plan

GavelWhen Austin Hardy died, he left behind a retirement plan that was administered by his employer but did not have a named death beneficiary. As a result, his employer followed the plan's procedure and transferred the proceeds to Hardy's biological daughter. However, Hardy's sisters challenged the distribution arguing that since his daughter had been adopted by her stepfather, she was no longer his child under the plan rules.

In Lubin v. AT&T Ret. Savings Plan, the district court ruled that the distribution was proper since the plan guidelines call for any surviving child, be it biological or adopted, to inherit if no surviving spouse or partner existed. The sister's argument that the daughter being adopted stripped her of her child status was not supported by any authority and would require reading words into an express agreement that was unambiguous. This case serves as an reminder that the holder of a retirement account should always name a beneficiary, as well as keeping the name up to date, in order to prevent grasping relations from claiming inheritance rights that were never intended to be theirs.
 
Special thanks to Naomi Cahn for bringing this case to my attention.

August 4, 2015 in Estate Administration, New Cases, Non-Probate Assets | Permalink | Comments (0)