Thursday, June 22, 2017
Generally, estate-planning attorneys in California who draft wills and trusts can only be sued by the client who hired them. There is a narrow exception to this rule. An attorney may be liable to a beneficiary when the attorney’s error harms the intended beneficiaries of the will or trust. The court will use a balancing test to determine if the attorney should be accountable for a drafting mistake. Among these factors are the extent of harm, foreseeability, and proximate cause. When all the balancing factors are met, a harmed beneficiary may successfully file suit against the drafting attorney. Of course, potential damages should be sufficient to warrant the suit; litigation may not be worth the effort in every circumstance.
See Keith Davidson, Estate Planning Attorneys May Be Held Liable in Legal Malpractice Lawsuits Where Intended Beneficiaries Lose Inheritance Under a California Trust or Will Due To Attorney Error, Albertson & Davidson, August 4, 2016.
Most people want to be remembered in a positive light after their passing. There exists in many of us a deep-seated fear that, because our words have forked no lightning, that we will go gentle into that good night and be forgotten. A simple solution to cementing a glowing legacy is through the use of an insurance policy. Insurance policies can be used to support immediate family during their time of grief and beyond. The life insurance death benefit may also be provided to the decedent’s favorite charity or used to set up a named scholarship fund. There are many methods of distribution for a life-insurance death benefit, but if used well, it may have a lasting impact on loved ones and communities well after death.
See Brittney Burgett, 5 Ways to Make a Great Impression After You’re Dead, MarketWatch, May 8, 2017.
Wednesday, June 21, 2017
Gerry W. Beyer recently published an Article entitled, Recent Texas Cases Impacting the Wills, Probate, and Trust Practice, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
This article discusses recent judicial developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The discussion of each case concludes with a moral, i.e., the important lesson to be learned from the case. By recognizing situations that have led to time consuming and costly litigation in the past, estate planners can reduce the likelihood of the same situations arising with their clients.
Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.
New Edition of "McCouch's Federal Income Taxation of Estates, Trusts, and Beneficiaries in a Nutshell" Released
Grayson M.P. McCouch recently published a book entitled, McCouch's Federal Income Taxation of Estates, Trusts, and Beneficiaries in a Nutshell (2017). Provided below is a description of the book:
This comprehensive guide can serve either as a course supplement or as a refresher for members of the bar. Expert commentary summarizes the law and offers critical perspectives on the federal income taxation of estates, trusts, and beneficiaries, including the decedent’s final income tax return; classification of estates and trusts; income in respect of a decedent; distributable net income; simple and complex trusts; distributions; grantor trusts; charitable trusts; and foreign trusts. Additional chapters cover basic income, gift and estate tax concepts, accumulation distributions, and specially treated trusts.
On June 9, the long-awaited fiduciary rule finally became effective. The rule requires financial advisors to put their clients’ best interests first when offering advice about retirement accounts like a 401(k). There is substantial confusion on the part of both investors and planners in understanding the scope of the rule. Some investors are becoming concerned with the changes their planners insist are due to the new standard, but seem arbitrary or outside the scope of the new fiduciary rules. Barbara Roper, director of investor protection for the Consumer Federation of America, sat down to answer some common questions regarding the rule. Roper explained that the rule, “applies to advice regarding Individual Retirement Accounts (both Roth and traditional), including rollover recommendations. It also applies to workplace retirement plans, such as 401(k)s and SEP and SIMPLE IRAs. Some 403(b) plans are also covered, but others, such as K-12 403(b)s, unfortunately are not. It does not apply to non-retirement accounts.” Roper also discusses how the rule generally works, necessary and unnecessary changes taken by advisors, and gives specific advice about different accounts and options for investors facing stubborn or dishonest planners.
See Michelle Singletary, A New Conflict-of-Interest Rule for Retirement Savers Is Causing a Lot of Confusion, The Washington Post, June 19, 2017.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Adam J. Hirsch recently published an Article entitled, Testation and the Mind, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
This Article explores the panoply of state-of-mind rules in inheritance law. In areas of law concerned with wrongdoing, consideration of mental states achieves specific deterrence and moral justice. By comparison, in the inheritance realm, I argue that consideration of mental states can serve to economize on decision costs. The Article looks at state-of-mind rules through this prism and also analyzes the public policy of these rules from the perspective of modern research into psychology. Finally, the Article examines state-of-mind rules comparatively, identifying inconsistencies between them that require justification. The Article closes by observing potential expansions of the model and applications in other areas of law.
Tuesday, June 20, 2017
Stephen R. Alton recently published an Article entitled, The Strange Case of Dr. Jekyll's Will: A Tale of Testamentary Capacity, Wills, Trusts, & Estate Law eJournal (2016). Provided below is an abstract of the Article:
Robert Louis Stevenson’s classic novella, The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, is the well-known tale of a respected scientist (Dr. Henry Jekyll) who transforms himself into an evil-doer (Mr. Edward Hyde). While the work raises issues of tort and criminal liability, this article analyzes the legal issues presented by one particular and crucial plot device that Stevenson employs — the last will of Dr. Jekyll. It is this will that so obsesses Jekyll’s friend and solicitor, Gabriel John Utterson (through whose eyes the story unfolds), that Utterson is impelled to seek the truth behind his friend’s relationship to Hyde. At the end of Utterson’s search, the solicitor learns about Jekyll’s dangerous scientific experiment, which leads to the respected doctor’s moral downfall and his physical death.
This article is presented as an imagined dialogue between the article’s author and Jekyll’s lawyer, Utterson, about the issues surrounding Jekyll’s mental capacity to make the will that left the doctor’s estate to Hyde. Jekyll’s will is an excellent case study for the application of various legal rules and doctrines regarding a testator’s mental capacity to make a valid will. These rules include those relating to the general soundness of the testator’s state of mind, the issues of undue influence and duress, and the doctrine of insane delusion. Stevenson’s novella is a wonderful vehicle for examining important legal problems that remain as relevant in America today as they were in England during Queen Victoria’s reign.
The Real Estate, Probate and Trust Law Section of the State Bar of Texas is cosponsoring a CLE entitled, Estate Planning and Probate Drafting, which will take place October 26-27, 2017, at The Westin Memorial City in Houston, Texas. Provided below is a description of the event:
28th Annual Course
Estate Planning and Probate Drafting
Cosponsored by the Real Estate, Probate and Trust Law Section of the State Bar of Texas
MCLE Credit: 13 hours, including 3.75 hours ethics.
Houston - Live Presentation
October 26-27, 2017
The Westin Memorial City
Register by October 12 and Save $50!
Bring your new associates - attorneys licensed 5 years or less receive half off!
More Info or Register
If you have any questions or would like to register by phone, please call 1-800-204-2222 ext. 1574.
If you are a Real Estate, Probate and Trust Law Section member, you can save up to $100! ($25 provided by REPTL) Not a member? You can join today! Click this link to review the benefits of being a REPTL member and sign up!
Make your reservation online or call The Westin Memorial City at 214-515-5100 before the October 5 deadline and indicate that you will be attending this State Bar of Texas course to get the special rate of $189 per night, single or double.
Drafting Buy-Sell Agreements and Employee Incentive Agreements
Drafting Common and Uncommon Pleadings - A View from Both Sides of the Bench
Drafting to Ensure Portability of DSUE
Drafting Indemnification Clauses, Exculpation Clauses, and Provisions for Modification of Fiduciary Duties
How to Armor the Estate Plan with Artful Drafting
Networking Social on Thursday night in Houston
Breakfast and Lunch provided both days
Complimentary wireless connection in the meeting room
Can't make it to the live course? Join us for the Video Replay:
Dallas - Video Replay
January 11-12, 2018
Cityplace Events (214-515-5100)
Register By January 4 and Save $50! Section Members can save up to $100! ($25 provided by REPTL)
Bring your new associates - attorneys licensed 5 years or less receive half off!
New Zealand trusts had previously been well-known for their desirable quality of being a haven for hiding assets. The island-nation recently modified its laws to compel all foreign trusts to register, provide details of who benefits from the trust, and designate who controls the trust. Since there are a number of legitimate reasons for an individual to want to hold an offshore, tax-free trust, the expectation was that the requirement to register would be of little issue. As of now, most trusts have failed to register and many have abandoned the country. This is a strong indicator that many of these trusts were being used illegitimately to hide assets.
See Trust the Kiwis, Tax Justice Network.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Steven J. Oshins, Esq., AEP (Distinguished) is an award-winning attorney practicing in Las Vegas, Nevada. He maintains clients throughout the United States. Oshins recently sat down for an in-depth interview covering a variety of topics. Part I of his interview considers the use of the Nevada Asset Protection Trust. Part II focuses on the Hybrid Nevada Asset Protection Trust, and Part III looks at the Nevada Incomplete Non-Grantor Trust. Part IV discusses Nevada Dynasty Trusts and reviews recent developments regarding these trusts.