Wills, Trusts & Estates Prof Blog

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

Sunday, August 5, 2018

Your Money: How to deal With the Paperwork Scramble After a Spouse Dies

ProbateAmidst the anguish of mourning the loss of a beloved spouse, the stress can be compounded by the process and paperwork of changing the title of all the assets that were jointly owned to now having a sole owner. The process - probate - can by time-consuming, expensive, and public, which is why many people try to avoid it if possible.

Financial adviser David Demming out of Aurora, Ohio recommends that clients with simple family structures use “pay-on-death” or “transfer-on-death” designations on all assets, rather than the legal structure of an estate trust. “If you are not trying to control from the grave, you don’t need a trust,” Demming said.

If a family dynamic is more complex financial advisers recommend legally structuring assets in trusts, regardless of the total amount of your assets. This can be especially important for blended families and those with special needs. Qualified retirement accounts like IRAs and 401(k)s, pensions and joint life insurance policies come with varying sets of rules about how they are inherited by spouses.

See Beth Pinsker, Your Money: How to deal With the Paperwork Scramble After a Spouse Dies, Reuters, June 18, 2018.

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

August 5, 2018 in Current Affairs, Death Event Planning, Elder Law, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts | Permalink | Comments (0)

Sunday, July 22, 2018

Did You Choose the Right Trustee?

TrusteesChoosing just the right trustee is a highly important decision, and in many cases more imperative than that of the proper executor of your estate. They will have discretionary authority over an entity that can last for multiple generations and will have the responsibility of decision making and asset investing for your trust.

  • Trustee Qualifications
    • A trustee should have sound professional financial judgment, and be reliable and trustworthy. They will be in charge of every financial and tax related responsibility of the trust including collecting trust assets, paying bills, filing trust tax returns and accounting as well as distributions to the beneficiaries, balancing the competing interests of income beneficiaries and remaindermen, considering whether to make loans of, or pledge, trust assets, and monitoring the investment performance of the trust.
  • Should You Select a Family Member?
    • Family members may have a stake in the success of the trust, prompting a heightened level of care and concern. However, if the family member chose to be trustee is also a beneficiary of the trust, their authority over trust distributions will be limited. If you would prefer that a trustee have broad discretionary power over trust distributions, you will need to name at least one trustee with no beneficial interest in the trust.
  • Should You Select an Unrelated Party?
    • An unrelated party, such as a close family friend, professional advisor or bank is another option. You may be hesitant to name a family friend as a trustee as they will then be granted intimate knowledge of your family's finances. If you are creating a long-term “dynasty trust,” you may want to consider naming a bank or trust company as trustee, since the trust will last beyond the lifetimes of any individuals you may know.
  • Revisiting Your Choice of Trustee?
    • One’s circumstances and relationships often change through the years, and you will want to make sure that the person or institution you selected a few years ago is still the right choice.

See Cheryl E. Hader, Monika Jain, & Avigail Goldglancz, Did You Choose the Right Trustee?, KramerLevin.com, July 16, 2018.

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

July 22, 2018 in Estate Administration, Estate Planning - Generally, Income Tax, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Monday, July 16, 2018

3 Principles for a Successful Family Legacy

LegacyThe next few decades will see the largest transfer of wealth between generations that has yet to occur in this country and in the world. Estate planning has become a less taboo subject among high net worth families as the prospect of extending their own legacy has become more prevalent and important. Those that adhere to the following three core legacy planning strategies have more success when transitioning wealth between generations.

  • Integrate planning
    • Your legacy is as much about providing financially for future generations as it is about how you wish to be remembered, and communicating with your advisors as well as your family will help you develop a detailed wealth plan that aligns with your legacy goals.
  • Evolve a healthy family wealth culture
    • A shared set of attitudes, values, goals and behaviors that characterize you as a family to many is more valuable and important than money in and of itself. Consider the elements that define your family’s culture, and keep them in mind as you designate goals for your wealth.
  • Develop the rising generation
    • Younger generations may have difficulty distinguishing between wealth and money, and their attitudes toward each may be apparent. Be a beacon and a role model, revealing to them how thoughtful spending, investing and charitable giving contribute to a sense of purpose.

See Catherine Schnaubelt, 3 Principles for a Successful Family Legacy, Forbes, July 13, 2018.

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

 

July 16, 2018 in Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Wednesday, July 4, 2018

Top Estate Planning Tips for Loved Ones with Special Needs

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-07-04/c33f8bcf-7dd9-4969-bca8-97054b3bd5cd.pngHaving a family member or loved one is difficult enough, and adding in the concept that there will be significant changes after you death can make it appear very daunting. Here are some tips thought to make the strenuous time a bit less problematic.

  • Avoid disinheriting the special needs beneficiary.
    • Many disabled citizens receive government benefits and therefore families are told to disinherit them so that they may continue to receive them. A special needs trust is a much more viable option.
  • Procrastinating can be costly.
    • Creating a trust early on makes it possible that special needs loved ones do not inadvertently inherit assets that disqualify them for government benefits.
  • Do not ignore the special needs of the beneficiary when planning.
    • A properly designed special needs trust promotes the comfort and happiness of the special needs beneficiary.
  • Choose a trustee wisely.
    • A group of advisors rather than a single trustee could be more stream lined for the benefit of the special needs beneficiary.
  • Invite others to contribute to the special needs trust.
    • New rules for trusts now allow others such as grandparents to help fund special needs trusts.
  • Avoid relying on siblings to use their money for the benefit of a special needs child.
    • Assets or funds handled by a sibling outside of a special needs trust could be lost to a lawsuit against the sibling or if the sibling divorces. If the sibling dies or becomes incapacitated, there are no built-in mechanisms for handling those finances for the surviving special needs child.

See Kara Gansmann, Top Estate Planning Tips for Loved Ones with Special Needs, Wilmington Biz Insights, July 2, 2018.

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

July 4, 2018 in Estate Planning - Generally, Non-Probate Assets, Trusts | Permalink | Comments (0)

Sunday, July 1, 2018

CLE on Trusts: The Ultimate Guide

CLEThe National Business Institute is holding a conference entitled, Trusts: The Ultimate Guide, on Monday, July 30, 2018 - Tuesday, July 31, 2018 at the Holiday Inn & Suites Oakland Airport in Oakland, California. Provided below is a description of the event.

Program Description

Make the Best Use of Today's Top Trusts

We've expanded on our top "Trusts 101" course to give you even more unique trusts structures, sample provisions language, and reasoning for which planning tools better suit specific client situations. Understand the key structures and uses of today's top trusts and anticipate administration challenges and tax consequences. Register today!

  • Get an update on the current laws and tax regs governing the trusts practice.
  • Analyze all key factors in selecting the best trust option for each unique situation.
  • Define powers and duties of all trust parties to smooth implementation and prevent disputes.
  • Save drafting time with sample trust language.
  • Clarify who your client is to avoid conflicts of interest and other ethical violations.
  • Minimize your client's tax burdens with effective use of defective trusts.
  • Get practical guidance for drafting unique, single purpose trusts for pets.

Who Should Attend

This basic level seminar is designed for professionals involved in drafting and administering trusts:

  • Attorneys
  • Accountants and CPAs
  • Trust Officers
  • Tax Managers
  • Wealth Managers
  • Financial Planners
  • Nursing Home Administrators
  • Paralegals

Course Content

  1. Key Parties, Terms, Legal Concepts
  2. Revocable vs. Irrevocable and Revocable to Irrevocable
  3. Living vs. Testamentary Trusts
  4. Marital/Disclaimer Trusts Post-ATRA
  5. Medicaid-Planning Trusts
  6. Special Needs Trusts
  7. Grantor Trusts
  8. Asset Protection Trusts: Domestic and Offshore
  9. Legal Ethics
  10. Trust Decanting, Modification, Dissolution, and Constructive Trusts
  11. Tax Deduction with Trusts
  12. Other Trust Structures and Issues

Continuing Education Credit

Continuing Legal Education – CLE: 12.00 *

Financial Planners – Financial Planners: 14.00

International Association for Continuing Education Training – IACET: 1.20

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 14.00 *

Professional Achievement in Continuing Education – PACE: 14.00

* denotes specialty credits

July 1, 2018 in Conferences & CLE, Current Affairs, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Non-Probate Assets, Trusts | Permalink | Comments (0)

Saturday, June 30, 2018

Advisors Fail to Cover These Key Topics with Clients

AdvisorAdvisors are bringing a new holistic approach to the table, but high-net worth clients say that they would like to speak more with their financial advisors on a couple of topics they find important. Only 48% of clients said they’re currently discussing estate planning with their advisor and only 16 percent were discussing strategic philanthropy according to the recent U.S. Trust’s 2018 Insights on Wealth and Worth study.

Digital personal archival service Everplans has now followed in the footsteps of social media sites and implemented a feature that allows users to designate certain sections of the plan to be shared only upon Everplans’ receiving a notification of death. The user would designate an "unlocker" who would not be required to provide a Social Security notice or a death certificate. Financial records, wills, and other accounts passwords are a few sections that can be chosen to remain locked until other notice.

See Advisors Fail to Cover These Key Topics with Clients, Wealth Management, June 26, 2018.

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

June 30, 2018 in Current Affairs, Estate Planning - Generally, Non-Probate Assets, Technology | Permalink | Comments (0)

Friday, June 29, 2018

CLE on PROBATE: Everything You Need to Know

CLEThe National Business Institute is holding a conference entitled PROBATE: Everything You Need to Know, on Wednesday, July 25, 2018 - Thursday, July 26, 2018 at Holiday Inn Cleveland Clinic in Cleveland, Ohio. Provided below is a description of the event:

Top Mistakes, Do's, Don'ts, Tips and Tricks

Is probate really necessary? How do you distinguish between probate and non probate assets? What are the top mistakes executors commonly make and how can you keep them from happening? How do you handle difficult, non-divisible, joint, hidden and unusual assets? In this comprehensive, all-inclusive guide to everything probate, you'll get answers to these questions and so much more. Whether you are new to the probate process, or are just needing a refresher, this course is for you. From petition to inventory to creditors to closing - this program walks you step by step through the process and procedures, while addressing sticking points along the way. Register today!

  • Get the probate process and procedure - clarified.
  • Find out top alternatives to (and ways to get out of) probate.
  • Get effective tips for proving the validity of the will and petitioning it, as well as how to handle lost wills.
  • Should there be early distribution of assets? Learn how to quickly identify and decide how to handle this potentially problematic procedure.
  • Review procedures for locating and marshalling assets, with sample forms and documents.
  • Discover which valuation method is best and how to ensure accurate appraisals.
  • Get proven tactics for handling 401ks, IRAs, pensions, stocks and retirement plans.
  • Gain tips for handling Medicaid estate recovery and VA liens.
  • Tackle top trust traps in probate and walk through the final accounting process.
  • Identify key tax deadlines and get techniques for preparing, coordinating and filing returns.

Who Should Attend

This basic-to-intermediate level program is designed for attorneys. Accountants and paralegals will also benefit.

Course Content

Day 1: Process, Initial Steps, Executor Mistakes, Assets, Wills and Probate Problems

  1. Probate Process and Procedure - Clarified
  2. PROBATE VS. NON PROBATE ASSETS - Which Ones Can Pass Outside of Probate?
  3. ESTATE ADMINISTRATION: Ensuring Executors Know Their Duties
  4. INITIAL CONFERENCE and Hearing - Timeline, Documents, Statements and Complications
  5. WILLS: Proving Validity, Petitioning and Top Problems
  6. Is Probate Necessary? Alternatives and Avoidance
  7. Top PROBLEMS in Probate

Day 2: Disputes, Insolvent Estates, Creditor Issues, Trusts, Taxes and Final Accounting

  1. When the Love is Gone... Tips for Resolving FAMILY DISPUTES in Probate
  2. CREDITOR CLAIM Conundrums
  3. MEDICAID Estate Recovery
  4. TRUST Traps in Probate
  5. TAX Deadlines, Preparation, Coordination, Filing Returns - AND Top IRS Pitfalls!
  6. Handling DISTRIBUTIONS and Closing the Estate Without a Hitch
  7. Ethical Practice Considerations and Concerns in Probate

Continuing Education Credit

Continuing Legal Education – CLE: 13.25 *

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 16.00 *

* denotes specialty credits

June 29, 2018 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Wills | Permalink | Comments (0)

Thursday, June 28, 2018

Can You Inherit a TFSA Tax-Free? [Canada]

CanadaA TFSA is a Tax Free Savings Account in which investment income, capital gains or other earnings are completely tax-free for a taxpayer as well as withdrawals from the account. Upon the death of the taxpayer there are other consideration.

If the taxpayer was your spouse and named you their "successor holder" the account transfers seamlessly and becomes your account without going through probate. If your spouse on the other hand named you as their beneficiary of the account, the value of the account as of their date of death can be paid to you or to your TFSA tax-free. If the value of the account rose in value after their death, you must include it in your income in the year of receipt; but as long as you claim it before December 31 of the year your spouse died you are able to file it as an "exempt amount." The account will also not be a part of their estate and there will be no need for probate fees.

If the estate is simply named as the beneficiary of the TFSA, probate taxes must be paid to the province of the deceased residence to validate their will.

See Jason Heath, Can You Inherit a TFSA Tax-Free?, Money Sense, June 27, 2018.

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

June 28, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Travel | Permalink | Comments (0)

Thursday, June 21, 2018

Article on Freedom of Disposition in American Succession Law

Will and testamentRobert H Sitkoff recently published an Article entitled, Freedom of Disposition in American Succession Law, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

The organizing principle of the American law of succession is freedom of disposition. This book chapter surveys freedom of disposition in American succession law--intestacy, wills, trusts, and nonprobate transfers. The chapter also considers the main limits on freedom of disposition, focusing on forced shares for spouses, the Rule Against Perpetuities, and the federal wealth transfer taxes. For the most part, however, the American law of succession facilitates rather than regulates implementation of the decedent’s intent. Most of the American law of succession is concerned with enabling posthumous enforcement of the actual intent of the decedent or, failing this, giving effect to the decedent’s probable intent.

Note: The chapter is based on the author’s remarks at the Conference on Freedom of Testation and its Limits at the University of Lleida, Spain, on 20 April 2018.

June 21, 2018 in Articles, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Friday, June 15, 2018

Book on Selected Statutes on Trusts and Estates, 2018

Statute bookMark L. Ascher & Grayson M.P. McCouch recently published a a book entitled, Selected Statutes on Trusts and Estates, 2018 ed. (2018). Provided below is some information about the book:

This casebook statutory supplement meets the needs of students in basic and advanced courses on wills, trusts, decedents' estates, fiduciary administration, and future interests, providing a compendium of essential uniform act provisions and official comments. It covers a wide range of topics, including: intestacy; wills; probate administration; nonprobate transfers; disclaimers; principal and income; prudent investments; perpetuities; trusts (including trust decanting and directed trusts); powers of appointment; and powers of attorney. The previous edition has been updated to include the recently-promulgated Uniform Directed Trust Act and related conforming amendments.

June 15, 2018 in Books - For Practitioners, Estate Planning - Generally, Guardianship, Intestate Succession, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)