Wills, Trusts & Estates Prof Blog

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

Wednesday, December 13, 2017

The Trust Beneficial Owner Register

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-13/8144e146-9e31-4a29-b360-0cdb285b8c72.pngThe Money Laundering, Terrorist Financing and Transfer of Funds Regulations 2017 (MLR 2017) were passed in the U.K. in June. Part of the legislation requires certain trustees to maintain a register of “beneficial ownership information” for use by HM Revenue & Customs. This information will be available to law enforcement agencies in the U.K. and upon request to European Economic area states. Generally, trusts subject to taxation in the UK and intentionally created by a settlor are the trusts specifically targeted by the new law. Though the penalties for failing to register are yet unclear, trustees affected by the regulations need to take precautionary measures to ensure compliance.

See Sam Thompson, The Trust Beneficial Owner Register, Wealth Management.com, December 5, 2017.

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

December 13, 2017 in Current Affairs, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Tuesday, December 12, 2017

CLE on Decanting Trusts: If It's "Broke," Can You Fix It?

0000000 CLEThe American Law Institute is holding a conference entitled: Decanting Trusts: If It's "Broke," Can You Fix It?, which will take place on Thursday, January 18, 2018, via telephone seminar and audio webcast. Provided below is a description of the event:

Why You Should Attend

Do you need to “fix” a trust? Have unforeseen circumstances made trust provisions difficult to administer? Are you drafting trusts for clients and want to make sure the trusts can adapt if things change months – or even years – from now? Do you want to enhance a trust to save taxes or protect its assets from creditors?

Decanting is a powerful tool that gives estate planners the flexibility to “fix” trust issues by creating a new trust or transferring assets into another pre-existing trust. Over 20 states have adopted decanting statutes, many with unique rules and requirements.

Whether you are drafting trusts for clients or need to re-assess existing trusts, join Steve Oshins and Robert Keebler as they explain when and how to decant trusts.

What You Will Learn

Topics include:

Reasons to decant a trust

State decanting statutes and some of the key distinctions between them

Private decanting

Tax issues that could arise from decanting trust

This replay was originally presented on May 2, 2017.

Have a question for the faculty? Send your questions to tsquestions@ali-cle.org.  Questions submitted during the program will be answered by email within two business days after the program. In addition, all registrants will receive a set of downloadable course materials.

Need this information now? Purchase the on-demand archive of this program here. Please note: questions submitted when taking the on-demand course may require more than two days for a response.

Who Should Attend

Estate planners and trust administrators should attend this program.

 

December 12, 2017 in Conferences & CLE, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Monday, December 11, 2017

Glen Campbell’s Will Doesn’t Include Three of His Eight Children

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-11/38fb5675-84b2-4718-9a05-2afb1e6bcf6e.pngAccording to documents filed in a Nashville court, Glen Campbell excluded his daughter, Kelli, and two sons, William and Wesley, from receiving any benefit from his estate. Campbell fathered a total of eight children over the course of four marriages. The children that were excluded from his will were all from his second marriage to Billie Jean Nunley. Kim Campbell, his fourth wife, is currently serving was the executor of his estate, which is estimated to be worth in excess of $50 million. Given the exclusion of three of Campbell’s children and his history of Alzheimer’s, the January 18 hearing on the filing may be the impetus for a protracted legal battle.   

See Glen Campbell’s Will Doesn’t Include Three of His Eight Children, Fox News, November 30, 2017.

December 11, 2017 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, Music, Trusts, Wills | Permalink | Comments (0)

Saturday, December 9, 2017

Article on Regularizing the Trust Protector

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-09/3e4a4a74-e2ae-4e4f-9304-8287f2f2addb.pngPaul B. Miller recently posted an Article entitled, Regularizing the Trust Protector, Wills, Trusts, & Estates Law eJournal (2017). Provided below is an abstract of the Article:

Increasingly, settlors of trusts in on-shore jurisdictions are making use of trust protectors. Protectors serve a variety of functions but generally speaking they are appointed to provide additional security for settlors’ expectations that trusts will be administered in accordance with their intentions. Given the potential breadth and variety of functions performed and powers wielded by protectors, their use generates important and profound theoretical issues. Taking its cues from recent efforts to regularize trust protection, this essay addresses questions concerning the extension of fiduciary duties to trust protectors. Amongst other things, it questions the tenability of proposals for broad extension of fiduciary status to protectors and advocates a structured fact-based approach to fiduciary characterization of trust protection mandates.

December 9, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Wednesday, December 6, 2017

Yours, Mine, Ours, and ‘ART’

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-06/d6a8b6cd-62e4-4b4b-af2b-f2e45cc1d1a0.pngIt is becoming more and more common for trustees and estate planners to have clients that have been through marriage multiple times. These clients may have children from a previous marriage, stepchildren, and adopted children, all having different sets of biological parents and grandparents. These blended families can be incredibly complex. To make matters more convoluted, assisted reproductive technologies (ART) have made it possible to add children to a marriage through a variety of technological measures. But, while state laws have kept pace with radical changes in American family dynamics over the past few decades, laws relating to ART kids are not well developed. There is substantial variation in how each state views surrogacy and gestational carrier agreements and whether a child born after the death of a parent should inherit under a trust or the decedent’s estate. However, through informed and careful decision-making, estate planners can their help clients reach a plan that accommodates these new and constantly changing reproductive advances.

See Judith Saxe, Yours, Mine, Ours, and ‘ART’, Financial Advisor, September 13, 2017.

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

December 6, 2017 in Estate Administration, Estate Planning - Generally, Intestate Succession, Science, Technology, Trusts, Wills | Permalink | Comments (0)

Tuesday, December 5, 2017

CLE on Current Developments in Estate and Tax Planning 2017

0000000 CLEAmerican Law Institute CLE (ALI CLE) and The American College of Trust and Estate Counsel (ACTEC) are holding a conference entitled Current Developments in Estate and Tax Planning 2017, which will take place on Wednesday, December 13, 2017, via telephone seminar and audio webcast. Provided below is a description of the event:

Why You Should Attend

Do you want to provide your estate planning clients with the best possible advice going into the new year? Are you up-to-date on the most significant developments to have come out of 2017? Set aside just 90 minutes to gain valuable insights on emerging trends in estate and tax planning, and learn how the newest cases, IRS guidance, and proposed regulations will impact your practice and your clients’ estate plans.

What You Will Learn

The faculty, all Fellows of The American College of Trust and Estate Counsel and highly-experienced estate and tax planning practitioners, will discuss:

The withdrawal of the Section 2704 Proposed Regulations

The proposed tax legislation and whether the estate tax will be repealed

Recent cases addressing:

- portability

- estate tax apportionment and net gifts

- asset transfers and family partnerships

- buying assets from trust for promissory note

- decanting without a state statute

Binding the IRS to trust reformations and modifications

New directions for processing applications to release the estate tax lien on estate property

Have a question for the faculty? Send your questions to tsquestions@ali-cle.org. Questions submitted during the program will be answered live by the faculty. In addition, all registrants will receive a set of downloadable course materials to accompany the program.

Who Should Attend

Estate planners and other professionals will benefit from this CLE on estate and tax planning developments jointly offered by the American Law Institute CLE and ACTEC.

December 5, 2017 in Conferences & CLE, Estate Planning - Generally, Estate Tax, Trusts | Permalink | Comments (0)

Limiting State Medicaid Agency Attempts to Expand the “Any Circumstances” Test: An Analysis of Massachusetts’ Multiyear Legal Battle Over the Use of Irrevocable Trusts in Long-Term Care Planning

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-05/f6368f9c-8601-416f-b71e-60c12ba4f175.pngThe use of irrevocable trusts as a tool for long-term care planning has historically been problematic. Though the federal Medicaid statute allows for the use of such trusts, Congress, along with state and federal courts, has not taken kindly to their real-world application. The past few years have seen increasing conflict between individuals wanting to use this planning measure and state Medicaid agencies. Trust litigation in Massachusetts, where appellate court decisions regarding Medicaid cases have a far-reaching impact, has shown that zealous advocacy on the part of elder attorneys may continue to push courts to more fairly and consistently apply federal law.

See Lisa M. Neely, Limiting State Medicaid Agency Attempts to Expand the “Any Circumstances” Test: An Analysis of Massachusetts’ Multiyear Legal Battle Over the Use of Irrevocable Trusts in Long-Term Care Planning, NAELA News, 2017.

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

December 5, 2017 in Elder Law, Estate Planning - Generally, Trusts | Permalink | Comments (0)

How the Elder Law Attorney Can Help the Personal Injury Attorney

NAELA logo bwClients receiving settlements must consider the effect these incoming monies may have on their Medicaid, Medicare, Supplemental Security Income, or Social Security Disability Income. It falls to their attorney to warn these clients of the potential loss of certain benefits. Failure to do so can result in a malpractice claim. Stand-alone special needs trusts (SNTs) and pooled special needs trusts (PSNTs) may be used to preserve these benefits. SNTs may utilize a family or corporate trustee. The drawback to these options is that corporate trustees can be expensive, and family trustees can be incompetent. PSNTs are run by a non-profit organization that usually has extensive experience managing assets in special needs trusts. Because assets are pooled, PSNTs tend to have better investment opportunities along with lower fees. 

See Joanne Marcus & Karen E. Dunivan, How the Elder Law Attorney Can Help the Personal Injury Attorney, NAELA News, 2017.

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

December 5, 2017 in Elder Law, Estate Planning - Generally, Professional Responsibility, Trusts | Permalink | Comments (0)

Monday, December 4, 2017

The Digital Afterlife Is a Mess

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-04/6acdae2a-eb1c-4109-8380-ac02cb5b9730.pngWhen a spouse, sibling, or other loved one passes away, there are a variety of ministerial duties that must subsequently be managed. An increasingly prevalent concern in today’s modern, technologically-centered society requires dealing with the decedent’s online accounts. Depending on the jurisdiction where the decedent is domiciled, this may be more easily said than done. The Uniform Fiduciary Access to Digital Assets Act, Revised (RUFADAA), proposed in 2015 and now enacted in more than two-thirds of the states, attempts to bring some uniformity to the process an individual will face when shutting down or accessing the online accounts of the deceased.  Currently, there is a four-tier hierarchy that governs how online accounts are handled after death: 1) If the website has a specific process to handle the death of its users separate from its general terms of service, this language controls, 2) if the company does not provide this option, the decedent’s will may dictate how the digital assets should be handled, 3) if the decedent did not have a will, then the website’s terms-of-service agreement (TOSA) controls, and 4) if the TOSA has no language concerning how digital assets are handled after death, then RUFADAA may step in to allow access to these assets. As a practical matter, it is generally best to offer some guidance in a will to make this overall process more concrete and less stressful for loved ones after your passing.

See Naomi Cahn, The Digital Afterlife Is a Mess, Slate, November 29, 2017.

December 4, 2017 in Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Sunday, December 3, 2017

Report: Aaron Hernandez May Have Hidden Money in Trust Before His Death

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2017-12-02/30b11aa9-4eba-48f6-b1ad-f515f150f6b0.pngFormer New England Patriots tight end Aaron Hernandez was arrested in 2013 for the murder of Odin Lloyd. He committed suicide in April of the same year while serving a life sentence for the crime. When the Patriots released Hernandez from his contract after these issues arose, they had paid him nearly $9 million out of the $40 million deal. In spite of this substantial income, Hernandez’s estate is likely insolvent, with nearly $3 million in liabilities and a scant $1.2 million declared in assets. Hernandez was thoughtful and prescient enough to create a trust for his daughter before his death. If the trust is upheld by the court, which is doubtful, it would be shielded from Hernandez’s creditors and could provide his daughter with some income and support.

See Shalise Manza Young, Report: Aaron Hernandez May Have Hidden Money in Trust Before His Death, Yahoo! Sports, November 29, 2017.

December 3, 2017 in Current Events, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)