Wills, Trusts & Estates Prof Blog

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

Wednesday, September 21, 2016

Book on Inherited IRAs Now 50% Off

Inherited irasSeymour Goldberg’s book entitled, Inherited IRAs: What Every Practitioner Must Know, 2015 Edition is now 50% off. Provided below is a summary of the book:

Many taxpayers have accumulated considerable assets in their retirement accounts. These assets may be in their 401(k), or other types of qualified retirement plans.  Many will roll over their retirement assets from an employer-sponsored retirement plan into a rollover IRA without a full understanding of the implications to their beneficiaries. In these situations, oversight can result in a morass of penalties about which a less-informed practitioner may be completely unaware.

Inherited IRA’s: What Every Practitioner Must Know is your guide to understanding these rules and effectively implementing an estate plan that includes retirement assets, written especially for the legal practitioner. It includes more than 100 scenarios, questions, and answers that you will most likely encounter as a practitioner dealing with often complex retirement asset distributions.

Checklists, sample forms, and summaries of court rulings on inherited IRA cases provide you with additional tools and resources that will help you best assist your clients through what is often a difficult time in their lives.

This 2015 edition is updated to include all of the recent changes to the rules and regulations surrounding estate planning and retirement asset distributions that have been enacted over the past year.

 

September 21, 2016 in Books, Books - For Practitioners, Books - For the Classroom, Estate Planning - Generally | Permalink | Comments (0)

Federal Court Uses Princess Lida Doctrine to Dismiss Trust Dispute

Court houseA new federal case with reliance on the Princess Lida doctrine dismisses a federal trust dispute whilst a pending trust dispute resides in state court. In Genovese v. Genovese, the decedent created a testamentary trust for his two children, one of which was a plaintiff for this case. The trust named the decedent’s father as trustee. After various disputes, the plaintiff filed suit in federal court against the trustee, bringing four counts. The defendants moved to dismiss the first two counts, arguing that because the state court had already taken jurisdiction over the trusts, the federal court could not subsequently take concurrent jurisdiction over those same trusts. The Princess Lida doctrine supports this argument by preventing a federal court from taking such jurisdiction. The rule, however, only applies if the federal action is in rem versus in personam. Accordingly, the court ended up dismissing both counts; however, count II was dismissed for other reasons based on an in personam contract, which restricts the Princess Lida doctrine. 

See Jeffrey Skatoff, Federal Court Dismisses Trust Dispute with Pending State Court Trust Dispute, Florida Probate Lawyers, September 19, 2016. 

 

September 21, 2016 in Current Events, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Newest Edition of Contemporary Trusts and Estates

Trusts and estatesSusan N. Gary, Jerome Borison, Naomi R. Cahn, & Paula A. Monopoli’s newest edition of Contemporary Trusts and Estates, Third Edition will be available for Spring 2017 classes. Provided below is a summary of the book:

This third edition casebook captures the rapid evolution of doctrine in trusts and estates law that has occurred over the past half-century in response to profound societal and demographic changes. Influenced by recent developments in legal education, this casebook integrates legal analysis, judgment and perspective, ethics, and practice skills. It focuses simultaneously on the theoretical foundations and practical applications of the material, teaching students by using traditional case analysis, and innovative exercises. 

Professors and students will benefit from: 

  • Reorganized coverage of Wills before Trusts, beginning with an overview of the familial relationships at the core of all trusts and estates.
  • Extensive textual explanations that present the law and its many nuances. 
  • The inclusion of practice skills and exercises in response to recent ABA requirements.
  • Fact-based problems that required students to explore cases, the UPC, UTC, and other statutes, as well as the MRPC, in depth.
  • Document drafting, role-playing, and letter-writing-to-clients exercises. 
  • Numerous updates including:  Post-Obergefell v. Hodges developments for same-sex families, additional material on decanting and the new Uniform Trust Decanting Act, inclusion of the Uniform Powers of Appointment Act, discussion of planning for digital assets, and the Incorporation of 2016 ACTEC Commentary on the Model Rules.

September 21, 2016 in Books, Books - For Practitioners, Books - For the Classroom, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Article on Nonprobate Transfers Subject to Spousal Elective Share

Spousal elective shareLucy L. Holifield recently published an Article entitled, Property Law—Upending the Familiar Tools of Estate Planning: Equity Renders Revocable Trusts Subject to the Arkansas Spousal Election. In re Estate of Thompson, 2014 Ark. 237, 434 S.W.3d 877, 38 U. Ark. Little Rock L. Rev. 75 (2015). Provided below is a summary of the Article:

Thompson has launched Arkansas probate law into a gray zone of uncertainty. Before, nonprobate transfers were simply not subject to the elective share. Now, nonprobate transfers may be subject to the elective share if the court thinks it reasonable to do so under the totality of the circumstances. Although the Thompson court articulates an intent-based test and applies the holding narrowly to revocable trusts, the decision was actually made on the equities of the case. In these cases, “fraudulent intent” is simply a post-hoc label assigned to an equitable outcome. The factors used are primarily objective, and a synthesis of case law from the jurisdictions cited in Thompson sheds significant light on what sorts of circumstances may lead the court to a finding of fraudulent intent.

Part II of this note will begin by discussing nonprobate transfers, the history of the spousal elective share, and efforts to protect against spousal disinheritance that occurs as a result of nonprobate transfers; it will end with a discussion of Arkansas's approach to the problem debuted in Thompson. Part III will provide an in-depth analysis of factors used in other jurisdictions to determine whether a nonprobate transfer is subject to the spousal elective share. Although this section will provide some guidance, it will also demonstrate just how malleable the Thompson court's intent-based analysis is and how unpredictable Arkansas's estate planning realm is left as a result. Part III will end by offering a practical solution in the form of nuptial agreements, and Part IV will conclude the note.

September 21, 2016 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, September 20, 2016

Article on Writing a Definitive Pet Trust

Pet trust beyerRachel Hirschfeld recently published an Article entitled, The Perfect Pet Trust: Saving Your Dog from the Unexpected, 9 Alb. Gov’t L. Rev. 107 (2016). Provided below is a summary of the Article:

This article is about pet trusts, the legal documents that secure an animal's uninterrupted care. The goal is to guide the reader through the process of writing a definitive pet trust, and to highlight the potential mistakes and pitfalls that could invalidate these documents.

What is a pet trust? A pet trust allows an individual, the Pet Owner, to name a Pet Guardian and, if they wish, to leave funds providing for the continued maintenance of animals, in the event that the Pet Owner is unable to.

The American Pet Products Association (“APPA”) estimates that about sixty-two percent of U.S. households have pets, and an astounding $60.59 million dollars will be spent on pets in the United States in 2015. This is three times the amount of money that was spent on pets approximately twenty years ago.

Clearly, times have changed and attitudes are evolving. An ever growing number of Americans consider their pets as more than just animals. According to The Harris Poll, there is a tendency for people to elevate their pets to the status equivalent to that of a family member. Just look at any Pet Owner's smartphone and you will see photos of their pets, along with other family members.

Because people are passionate about their pets, providing uninterrupted care for them is often a concern. When something happens to a Pet Owner, such as an accident, illness, or death, a pet trust becomes especially critical.

Sadly, if there is no legal document or binding plan in place, the court may make decisions for what it terms the abandoned animal.

September 20, 2016 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

How to Find Your Lost 401(k)

401kIn the haphazard U.S. retirement system, there is not an easy way to make sure your retirement assets follow you throughout your career. Specifically, no central database exists to help you find your old 401(k)s or pensions. Any changes to the current state may need to wait for Congress, but a bill has been sponsored to create a “retirement lost-and-found,” a searchable database for those abandoned accounts. Currently, the U.S. Pension Benefit Guaranty Corp. runs a “missing-participants program,” a searchable database for traditional pension plans. The agency is trying to expand the program into 401(k)s and other defined-contribution plans. However, the agency will be competing with private niche companies in this area, but it plans to offer modern search tools to help with finding these participants and beneficiaries. 

See Ben Steverman, Lost Track of an Old 401(k)? Here’s How to Find It, Financial Advisor, September 19, 2016.

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

September 20, 2016 in Estate Planning - Generally | Permalink | Comments (0)

The New Rising Class of the Mega Wealthy

Penta millionaireAmericans are becoming richer quicker. For example, last year, there were 492 American billionaires, evidencing that 100 new billionaires were created in the past five years. Another historical threshold is the 5% increase from 2014 of households with more than $5 million in investible assets. These statistics introduce a broader, younger, more geographically diverse group of self-made magnates. Another growing trend with these moguls is their age and gender; more and more of the ultra wealthy are female and much younger than we have seen in the past. Their fortunes, however, are not keeping them from regular fears and insecurities, such as their investment portfolios, financial security, and the effect of wealth on their children. With this surge comes the need for dedicated services helping with specific issues of inheritance. Wealth managers are establishing clients’ goals of shared values over their wealth and how the family can manifest these values through the generations.

 See Stacy Perman, Penta Millionaires: The New Rising Class, Barron’s, September 17, 2016.

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

September 20, 2016 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

Article on Virginia's Premarital Agreement Enforcement at Death

PrenupAndrew F. Gann, Jr. recently published an Article entitled, Prenuptial Agreements and Fraud on the Widow’s Share: A Look at Virginia’s Law on Premarital Agreement Enforcement at Death, 23 Va. J. Soc. Pol’y & L. 231 (2016). Provided below is a summary of the Article:

Each year over 50,000 Virginia residents get married. Before many of these marriages, couples decide that they will enter into a contract, known as a premarital agreement. This agreement determines their rights to each other's assets. While these contracts are usually formed due to the contemplation of a future divorce, a premarital agreement also becomes important at another marital event--the death of a spouse. In this note, I analyze the importance of premarital agreements during the probate process and examine the Supreme Court of Virginia's case law on premarital agreements at the death of a spouse. The case law is surveyed to show that the court provides significant uncertainty that could ultimately allow couples to enter into an agreement that renders the surviving spouse helpless to obtain sufficient funds to survive. This helplessness occurs all while neither spouse truly understands the importance of these agreements. After providing this background, and exploring the problems that a surviving spouse could face, I suggest a new framework that the court could adopt that is supported by both common-law principles and the goal of protecting the surviving spouse.

September 20, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Monday, September 19, 2016

First Minor Granted Euthanasia in Belgium

EuthenasiaTwo years ago, Belgium rescinded the age restrictions on euthanasia, and now, the first terminally ill minor has been assisted to die. Currently, Belgium is the only country that allows minors to be assisted in dying. The law, however, is quite strict, requiring the minor to be in the final stages of terminal illness; understand rationally the difference between life and death; and ask to end their life on repeated occasions. Additionally, another requirement for these minors is to have parental consent along with the consent of two doctors. Not surprisingly, this law comes with much opposition. 

See Belgium Sees First Case of Minor Being Granted Euthanasia, Fox News, September 17, 2016.

September 19, 2016 in Current Events, Death Event Planning, New Legislation | Permalink | Comments (0)

Critics Outrage Over Spending of Thrifty Librarian's Bequest

Robert morinRecently, a librarian, Robert Morin, bequeathed his $4 million estate to his alma mater, the University of New Hampshire, but critics are now unsatisfied with the way the university has chosen to spend the cash. A large portion—$1 million to be exact—will go toward a new scoreboard at the football stadium; a use that the school says represents Morin’s love for football in the last fifteen months of his life. Others, however, see this spending at odds with the frugal librarian’s life while the library only receives a tenth of that sum.

See Ben Guarino, University to Buy Football Scoreboard with Thrifty Librarian’s Money, Outraging Critics, Independent, September 16, 2016.

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

September 19, 2016 in Current Events, Estate Administration, Estate Planning - Generally, Sports | Permalink | Comments (0)