Wills, Trusts & Estates Prof Blog

CLE on Beneficiary Designation Problems

The American Bar Association Section of Real Property, Trust and Estate Law will sponsor a CLE entitled, When Good Benes Go Bad or Missing Beneficiary Designation Problems with Qualified Plans and IRAs: How to Identify, Avoid and Fix Them, on May 22, 2013. Provided below is a description of the event:

PANELISTS:
Robert S. Keebler, Keebler & Associates, LLP, Green Bay, WI
Kristen M. Lynch, Fowler White Burnett, Ft. Lauderdale, FL

PROGRAM INFORMATION

TextIt is currently estimated that there are over Five Trillion Dollars currently invested in Individual Retirement Accounts (IRAs) and that these assets comprise approximately 10% of all household financial assets. IRAs, and a staggering amount of tax-deferred employee benefit accounts (which are eligible at some point be rolled into the IRAs) now constitute a meaningful part of estate planning and post mortem planning discussions. Both IRA assets and plan assets are supposed to pass by way of beneficiary designation . . .and yet there is an ever-increasing number of situations in which the beneficiary designation does not appear to name the intended beneficiary, has some execution flaw, or has completely gone missing.

The purpose of this informative webinar is to provide some background on Federal and common State laws that impact IRAs and qualified plans, as well as contractual issues.

The speakers will discuss the types of beneficiary problems that can arise and will discuss various options and approaches towards correcting the problems or mitigating the damage caused, including:

• The impact of ERISA and REA on plan beneficiary designations;
• The deadlines after death within which actions should be taken;
• How to preserve or salvage tax deferral/life expectancy if possible;
• Spousal IRA concerns – community property, divorce settlements, elective share;
• Undue influence and beneficiary disputes – or the IRA version of a will contest;
• Post-mortem possibilities if the named beneficiary has “Special Needs”;
• The issues presented when trusts are named or utilized inappropriately;
• The constant balance between best possible tax deferral and getting the IRA into the right hands; and
• Best practices 

Register now for this program using your ABA ID (00954888).

Teaching T&E Using Outcomes-Based Techniques

Carolyn Grose (Professor of Law, William Mitchell College of Law) has recently published her article entitled Outcomes-Based Education One Course at a Time: My Experiment with Estates and Trusts, 62 J. Legal Educ. 336 (2012).

Here is the abstract from the SSRN version of her article:

Over the past three or four years, the legal academy has been under pressure to reform, driven by the critique that legal education does not adequately prepare law students to be lawyers.

The Carnegie Report, Best Practices for Legal Education, and even publications by the American Bar Association challenge law schools to radically rethink the delivery of legal education by starting at the end and working backwards. The current buzzword for this kind of education is “outcomes-based” education. The reports encourage law schools to focus on demonstrated student learning (outcomes) rather than what students are taught (input). In fact a report by the ABA Outcome Measures Committee recommends that output measures substantially replace input measures for the purpose of law school accreditation, and the ABA is currently considering amendments to its Accreditation Standards that would incorporate parts of that proposal

When presented with the opportunity to teach a new course, I decided to put some of these ideas to the test. Thus, in planning and ultimately delivering my Estates and Trusts course for the first time, I started at the end: by identifying my desired outcomes. What did I want students who completed my course to be able to do? In Stage II, I identified what evidence I would need to determine whether students had achieved these stated goals. What would student proficiency look like, in my course? Having identified such evidence, I designed assessment tools and activities that would measure such evidence and help me determine the level of proficiency. Stage III involved designing my instruction tools and teaching activities geared toward helping students gather the evidence necessary to allow me to assess whether they were achieving the stated outcomes. I planned to teach toward my goals. And finally, in Stage IV, I reviewed the whole process – one goal at a time, one class at a time, one assessment tool at a time – to figure out how I as an instructor had succeeded, or not, at designing and delivering the course from the end to the beginning.

In this article, I explore and demonstrate the effectiveness of outcomes-based education in the context of the planning and delivery of this one course. After giving a general overview of outcomes-based education, each section of the article will first describe the particular stage of outcomes-based education (i.e. outcomes, assessment, delivery, evaluation), drawing from non-legal and legal education resources on the topic; and then will describe my process of implementing these ideas, with some evaluation of their usefulness both for me as a teacher, and for my students.

I do not think I am ruining the story by giving away the ending: Requiring clarity and transparency about my goals for this course, and gearing the entire course toward helping students meet those goals resulted in a course that felt more intentional, contextual, and capable of reproduction than any course I had taught before. I believe the students benefited from my planning and teaching, by gaining more understanding both of the material itself, and also of the process of learning the material. Their ability to self-assess throughout the semester improved measurably, allowing me to refine and adjust the materials as needed much more than I had done in previous courses. In short, this way of designing and implementing a course worked beautifully for me, and I believe it worked for my students.

Fall AALS Trusts & Estates Newsletter -- Call for Updates

Iris Goodwin (Associate Professor, University of Tennessee College of Law) is compiling information for the fall newsletter of the AALS Section on Trusts and Estates.

Please email her with news of your or your colleagues’ accomplishments, publications, career moves, awards of tenure, promotions, conference presentations, service, and other professional activities.

 

Please send your information to igoodwin@utk.edu by October 10, 2012.

Subscribe to the Estate Planning Course Materials Journal

The ALI-ABA offers an annual subscription to the Estate Planning Course Materials Journal. This publication has the most up-to-date materials from ALI-ABA courses. If you subscribe to one year of print, you get the online version for free using the coupon code, EPCMJ6T. Please click here for more details and to subscribe today. 

A New Financial Advisor For a New Time

With the rise in domestic partnerships, there is need for financial planners to become educated on issues that relate specifically to unmarried couples. The College on Financial Planning now has a program that allows a financial planner to become a Accredited Domestic Partnership Advisor. These programs focus on planning for same-sex couples and heterosexual unmarried couples. This type of education is important because of the differences in the benefits that married couples can receive as opposed to unmarried couples. To learn more about this program, a person should read the full article below. I have provided a link.

See Jerry Gleeson, Learn How to Financially Advice Unmarried Couples, Registered Rep, May 29, 2012.

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

AALS Section on Aging and the Law and AALS Section on Trusts and Estates Call for Papers

The AALS Section on Aging and the Law, and the AALS Section on Trusts and Estates announced that they are sponsoring a Call for Papers for its joint program during the AALS 2013 Annual Meeting in New Orleans, LA on Trusts and Estates, and an Aging Population: What We Need to Know and Teach scheduled for Saturday, January 5, 2013, from 10:30am to 12:15pm.

Here is a description of the program:

While many aspects of an estate and trust practice harmonize with an elder law practice, the fit is not always perfect: there are some distinct legal, practical, and ethical issues about which attorneys from the two disciplines often have conflicting views. In many law schools, where both classes in both areas are offered as electives, the professors who teach one of the topics never talks to the professors who teach the other, and students are often left wondering how to reconcile the different planning, litigation, and counseling strategies taught in each class.  This joint session is designed to help teachers in one area better understand the other so that all of us can improve our syllabi, forms of instruction, selection of guest instructors, and methods of assessment to better reflect the skillset needed by future attorneys.  The first panel will look at mental capacity issues and conflicts between typical provisions of estate & trust documents and elder law documents.  The second panel will explore conflicts of interest faced by family members who are beneficiaries named in trust & estate documents and are also agents, guardians or conservators under documents such as durable powers of attorney and as court appointed fiduciaries. The third panel will highlight some emerging conflicts with trust protector clauses in trust & estate documents with the needs of the grantor while still alive and possibly in need of expensive long term care management.

They are looking for separate papers for each of the three panels.

Publication

The editorial board of the Penn State Law Review has committed to publishing the proceedings of this joint program in a spring 2013 symposium edition.  The editorial board of the Penn State Law Review reserved the right to accept or deny articles based on their internal publication requirements and parameters, regardless of whether the Paper Review Committee accepts an article for presentation at the 2013 AALS Annual Meeting (according to their website, their manuscripts specifications are: Word format, Double-spaced, Footnotes not endnotes; and, Text and citations should conform to The Bluebook: A Uniform System of Citation (19th ed. 2010) – plus a resume and a separate cover sheet which includes a brief abstract.

There is a possibility that The Dickinson School of Law at The Pennsylvania State University and the Penn State Law Review will host a special symposium conference in addition to the 2013 AALS Annual Meeting.  Accepted authors will be further informed.

Form and length of submission

The intention is that any article accepted by the Paper Review Committee will be considered for publication in the Penn State Law Review, special spring symposium edition.  As such, articles submitted should be substantial enough in quality, quantity, and relevance to impress both the Paper Review Committee and the editorial board of the Penn State Law Review.

The Paper Review Committee will review all submissions anonymously, so a cover letter with the author’s name and contact information should accompany the paper.  The paper itself, including the title page and footnotes, must not contain any references identifying the author or the author’s school.  The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes.  Papers must not be published or be accepted for publication prior to the Annual Meeting.

Deadline and submission method

To be considered, papers must be submitted electronically to Professor Barry Kozak at bkozak@jmls.edu.  The deadline for submission is Tuesday, September 4, 2012, at 11:59pm EST.  The author of the selected paper will be notified by Tuesday, September 25, 2012.  The Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.

Eligibility

Full-time faculty members of AALS member law schools are eligible to submit papers. 

Foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members; graduate students; fellows and non-law school faculty are not eligible to submit. Faculty at fee-paid non-member schools are also ineligible.

How will submissions be reviewed

Papers will be selected after review by members of the “Paper Review Committee” – comprised of individual members of the Executive Committee of the Section on Aging and the Law and the Section on Trusts and Estates.

Inquiries about the Call for Papers

Any inquiries about the Call for Papers should be submitted to: Barry Kozak, The John Marshall Law School, bkozak@jmls.edu and/or William P. LaPiana, New York Law School, william.lapiana@nyls.edu.

AALS Section of Trusts & Estates Spring 2012 Newsletter

Section Chair Prof. Laura Rosenbury (Washington University) has stated:

As the academic year comes to a close, this Newsletter from the AALS Section on Trusts & Estates reflects on the conferences, programs, and scholarship of the past year and looks to future events. Although the activities of our section members are varied and diverse, one constant theme pervades our work: the dynamic, shifting, and timely nature of trusts and estates debates.

You may read this exciting Newsletter by following this link.

Spring AALS Trusts & Estates Newsletter -- Call for Updates

Iris Goodwin (Associate Professor, University of Tennessee College of Law) is compiling information for the spring newsletter of the AALS Section on Trusts and Estates.

Please email her with news of your or your colleagues’ accomplishments, publications, career moves, awards of tenure, promotions, conference presentations, service, and other professional activities.

Please send your information to igoodwin@utk.edu by March 23, 2012.

Seven Characteristics of Financially Intelligent Parents

A financially intelligent parent is more than just one who knows how to balance a checkbook and make good investments. Seven important characteristics of financially intelligent parents include:

• Being optimistic about changing money behaviors
• Valuing financial savvy and financial intelligence
• Thinking about the meaning of money in their lives
• Educating their children financially.
• Recognizing that their money deeds have a strong impact on their kids.
• Feeling that children should hear “no” and “enough” in terms of money education
• Wanting children to work for a sense of satisfaction as opposed to money.  

One sociologist points out that that money is more present in our lives than we acknowledge – it is more than just a medium of exchange. Prioritizing a child’s financial education means discussing responsibility with them even when the conversations may be difficult.  

See Jon & Eileen, The Seven Beliefs of Financially Intelligent Parents – Part 1, Gallo Consulting LLC, June 21, 2011

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

Advice for Forming Private Foundations

Advisers who are working with hedge fund principals to form a private foundation have several issues to consider. Private foundations are superior to other donor-advised funds and other charitable structures because they offer a broader range of investments.

One of the major issues is whether fund principals invest in their own funds. A principal is considered a disqualified person with respect to his foundation and this may indicate that the fund itself is a disqualified person. Self-dealing is an issue that comes up often and it is broadly defined in the code, so an investment by the foundation into the principal’s fund would be considered self-dealing. You can avoid self-dealing by waiving fees for charitable organizations and being aware of the rules that govern ownership and suitable investments.

Before forming a fund, fund principals should be advised of the restrictions that the IRS imposes on the operation of the foundation. The foundation has to make “qualifying distributions” of at least 5% of its worth every year. Notably, a donation from one private foundation to another is not a qualifying distribution.

Principals also have to decide whether to provide publicity or privacy. If the foundation favors privacy, then principals can form around that desire and remain more anonymous.

Private foundations can be a great way to integrate family members into charity, but be sure that if you’re compensating them, the compensation is reasonable to avoid any self-dealing claims.

See Stephen Liss and Evan Jehle, Foundations for Fund Principals, Financial Advisor, Mar. 2012. 

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

Selling Your Small Business on a Note

Small businesses often deal with seller financing. Seller financing can be beneficial in increasing the number of buyers, increasing the likely purchase price, easing transition issues, and relaying that you’re confident the new business will succeed under new ownership.

Forbes suggests nine tips to minimize your risk when you’re selling the business on a note:

1. Get cash up front to satisfy a large portion of the price.

2. Consider whether the buyer has the skills and temperament necessary to succeed.

3. Run a credit check on potential buyer.

4. Inquire whether buyer has assets to secure the loan.

5. Set up loan covenants so that you can step in early if the business is not doing as well as you had hoped.

6. Demand regular audits to make sure that the buyer is running the business honestly.

7. Keep tabs on customers to ensure that they are not unhappy, or cutting back on orders.

8. Have a plan for taking back the business if you need to step in.

9. Do not just turn your back on the business, hoping for the best unless you can afford to walk away from the balance on the loan.

See Bill Conerly, Selling a Business on a Note: 9 Tips for Success, Forbes, Mar. 27, 2012. 

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

ACTEC Sponsors Reception for AALS Section on Trusts & Estates on January 5

There will be a reception for members of the AALS Section on Trusts & Estates on Thursday, January 5, 2012 from 7:00 pm to 8:00 pm at the Marriott Wardman Park Hotel. The reception is sponsored by the American College of Trust and Estate Counsel and is the FIRST reception in recent memory for our section. Please come!

If you are a section "mentor," please reach out to your "mentee" and invite him or her to come. If you have colleagues -- of any level -- who teach in the area and would like to meet a few more section members, please invite them! ACTEC is glad for advance RSVPs to rsvp@actec.org.

Wealth Class

The change in the gift tax exemption this year brought with it an increased demand for financial literacy workshops aimed at younger generations who are going to inherit great wealth. Wealth Management firms are starting to offer these conferences in response to the growing demand, and to attract new customers. Wealth Management firms take advantage of the opportunity to build an advisor relationship with these wealthy clients outside of strictly financial matters.

The conferences help the younger generations deal with the responsibilities of immense wealth, covering topics such as philanthropy, communication, leadership, entrepreneurship, and succession planning. The conferences have separate sessions for parents and children ranging from ages 18-30, as well as joint value sessions that discuss wealth transfer, reputation, and family legacy.

See Charles Paikert, Wealth Managers Wooing Gen Y Heirs with Conferences and Workshops, Registered Rep Magazine, June 8, 2011.

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

AALS Fall 2011 Newsletter

In the words of the Chair of AALS Section on Trusts and Estates Bridget Crawford:

The AALS Section on Trusts & Estates is pleased to send this newsletter with information about conferences, programs, calls, scholarship and other professional news of interest to the membership.

You may read this exciting Newsletter by following this link.

ABA Recommends that Law Schools Adopt More Practical Training for Students

According to Rachel M. Zahorsky, ABA Urges Law Schools to Adopt More Practical Training for Students, abajournal.com (Aug. 9, 2011):

The ABA House of Delegates voted Tuesday to adopt a resolution to urge law schools to more adequately prepare law students for the real-life experience of practicing law and bolster CLE training to better bridge the gap between law school and actual practice.

Submitted to the House in a late report from the New York State Bar Association at the ABA Annual Meeting in Toronto, Resolution 10B (PDF-Revised) resolves that the ABA "take steps to assure that law schools, law firms, law examiners, CLE providers and others concerned with continued professional development provide the knowledge, skills, values, habits and traits that make up the successful modern lawyer."

“Many new lawyers come out of law school never having drafted a complaint; never having seen a contract; never having interacted with a client, much less an adverse witness,” said former New York State Bar Association President Stephen Younger. However, those same lawyers, in increasing numbers, are hanging their shingles as solo practitioners. “It is a real ticking time-bomb for our profession,” Younger said.

Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) and Mary F. Radford (Professor of Law, Georgia State University College of Law) recently posted their article entitled Experiential Learning in Trusts and Estates Courses (2011) on SSRN which provides numerous suggestions on how to include practical training in trusts, estates, and related courses.

Article on Experiential Learning in Trusts and Estates Courses

Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) and Mary F. Radford (Professor of Law, Georgia State University College of Law) recently posted their article entitled Experiential Learning in Trusts and Estates Courses (2011) on SSRN. The abstract is below:

The Legal Education Committee of the American College of Trust and Estate Counsel has had extensive discussions about the increasing need for law schools to provide students with opportunities to engage in skills-related or experiential learning courses. Many Committee members observed that, as the large firms are cutting back on their hiring and many lawyers in all sizes of firms are being forced to be more focused on the bottom line, there are fewer and fewer opportunities for new young lawyers to receive the mentoring and training they need. Additionally, given the sad state of the job market, many of us are seeing our students start up their own firms immediately upon graduation.

In addition, the American Bar Association is placing more emphasis on experiential learning in its accreditation process. Standard 302(a)(4) requires law schools to provide each student with, “professional skills generally regarded as necessary for effective and responsible participation in the legal profession.” Interpretation 302-2 provides the following non-exclusive list of programs that fulfill this Standard: “[t]rial and appellate advocacy, alternative methods of dispute resolution, counseling, interviewing, negotiating, problem solving, factual investigation, organization and management of legal work, and drafting.”

Mary F. Radford and Gerry W. Beyer chaired a subcommittee to gather information on what types of experiential learning opportunities are being offered or being considered in our area of the law. The results of this survey are provided in this article. The authors provide contact information for many of the professors using the techniques and encourage you to contact them to learn more about their techniques and to share your own experiences.

AALS Spring 2011 Newsletter

In the words of the Chair of AALS Section on Trusts and Estates Bridget Crawford:

As we come to the end of another academic year, the AALS Section on Trusts & Estates is pleased to send this newsletter with information about conferences, programs, calls, scholarship and other professional news of interest to the membership.

You may read this exciting Newsletter by following this link.

Programs Aimed at Teaching Students How to Donate Wisely

Schools in both the U.K. and North America have created programs aimed at giving children a hands-on approach to donating to charities. While programs in the U.K. tend to exist only in higher class schools, North America has seen success with similar programs in schools of all economic classes.

Philanthropy in Schools, the program in place at the independent Dragon School in Oxford, has its students look at a charity’s annual income prior to donating to determine what percentage of the income actually goes to the charity’s purpose. Philanthropy in Schools works closely with Big Give, an organization that collects information on over 7,000 charities worldwide.

Youth and Philanthropy Initiative, a similar program in place in the U.S., has middle school children study their community’s needs, create a presentation on a particular charity that addresses those needs, and then present the information about the charity in front of a judge. The winning presentation receives a monetary award to give to the charity addressed in the presentation.

See Javier Espinoza, Teach Your Children (How to Give) Well, W.S.J., Dec. 12, 2010.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this to my attention.

California School Helps Special Needs Students

Sierra Works, a workability program in Sacramento’s Sierra School, helps special needs students develop skills needed after graduation. Each student earns minimum wage and must submit an application to become a part of the program. Along with teaching students to become self-sufficient, the program also helps build a student’s self-confidence and self-esteem.

One student of the program, junior Nick Perez, says, "We probably wouldn't be here, possibly even in school without those teachers. For me, I know I'd be probably seriously injured or I'd be in jail right now if it wasn't for this school. I'm just trying to be a great person in society."

Maneeza Iqbal, School Teaches Life Skills to Special Needs Students, News 10, Mar. 30, 2011.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this to my attention.

How to Become a Law Professor

Brannon P. Denning (Professor of Law, Samford University Cumberland School of Law), Marcia L. McCormick (Associate Professor of Law, Saint Louis University School of Law), and Jeff M. Lipshaw (Associate Professor of Law, Suffolk University Law School) recently published their book entitled Becoming a Law Professor: A Candidate’s Guide (ABA Book Publishing 2010). The publisher’s description is below:

This book is a soup-to-nuts guide, taking aspiring legal academics from their first aspirations on a step-by-step journey through the practicalities of the Association of American Law School's hiring conference, on-campus interviews, and preparing for the first semester of teaching. This up-to-date resource reflects the changing nature and new realities of the legal academy. Until recently, entry into the legal academy was a function of credentials and connections. Today, your record of publication has become the primary portal into professorship. High-quality legal scholarship, in addition to solid credentials can give you the advantage you need to secure the best jobs available.

In this book, you'll discover the types of teaching jobs available and responsibilities of each, the possible paths to teaching, contrasting the standard entrance model with the various other methods. Three chapters detail the law school hiring process, including a special chapter offering advice to handling issues that may come up during the interview process. The book then details information that will be invaluable for the new professor, drawn from the personal experience of the authors. Finally, you'll find suggestions in case your first attempt at the academic job market fails to produce an offer. In addition, the book contains an annotated bibliography on the hiring process, as well as a primer on the law review submissions process, and timelines and checklists to help you stay organized.

While this book is perfect for the aspiring law professor, career service professionals will find the book helpful for the right students as an alternative to practice. If you're even considering charting a course toward a law school career, this is one resource you don't want to be without.