Saturday, June 24, 2017
Emily Devaney recently published an Article entitled, How Can the Property (Relationships) Act Be ‘Trusted’? An Analysis of Trust Law and its Interface with Relationship Property Law, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
Deficiencies in the Property (Relationships) Act 1976 (PRA) have led to allegations of sham trusts, alter ego trusts, the bundle of rights doctrine and illusory trusts. These claims are not the correct means to deal with the failure of legislation to fulfil its intention. They are ill-suited for trust law and are indicative of a growing pressure to allow access to trust capital, and to prevent excessive control of trusts defeating the rightful entitlement of a spouse to equal sharing of relationship property. In order to clarify the law of trusts and of relationship property this article recommends reform to s 44C of the PRA, to allow access to trust capital. It recommends repealing s 182 of the Family Proceedings Act. This article stands for the proposition that these reforms alone are insufficient. Indications of what constitutes intent to defeat rights should be included in s 44. Effective control of trust property by a defendant who is the claimants spouse or partner, should be an indication of intent to defeat rights that will allow the disposition to be set aside. These reforms will give effect to the purpose of the PRA and clarify trust law.
Friday, June 23, 2017
Estate planning involves more than simply drafting a will. It is a comprehensive strategy that has many facets. Competent estate planners can help protect you and your loved ones during retirement, set up plans in case of incapacity, help avoid taxes, and make sure assets are distributed according to a decedent’s wishes. Barry Kozak, an estate lawyer with October Three Consulting in Chicago, tells his students that estate planning does not have to be overly complicated. He offers five simple steps to make life and end-of-life easier on loved ones.
First, Kozak suggests pre-paying for a funeral. Planning and paying now takes a significant burden off a mourning spouse or child. Second, set up a family committee to manage a revocable trust. In case of mental incapacity, a family disability committee may help avoid court and dealing with an adult guardianship hearing. Next, use a different lawyer for each spouse when drafting an estate plan. While not a romantic notion, this option helps avoid conflicts in the future. Fourth, do not underestimate your life expectancy. A man reaching age sixty-five can expect to live, on average, to age eighty-four. Finally, match your lifestyle to your retirement income. Make sure to calculate your income needs during retirement. If you do not have enough, you may need to work longer or modify your retirement plans.
See Tom Anderson, Five Ways to Bulletproof Your Estate Plan, CNBC, April 7, 2017.
University of Texas at Austin School of Law is holding a CLE entitled, 14th Annual Changes and Trends Affecting Special Needs Trusts, which will take place February 15-16, 2018, at the Doubletree by Hilton Hotel in Austin, Texas. Provided below is a description of the event:
Mark your calendar for the 14th Annual Changes and Trends Affecting Special Needs Trusts conference, scheduled for February 15-16, 2018 at the DoubleTree by Hilton Hotel Austin.
This conference brings together nationally recognized professionals in the SNT field, features the latest updates and hot topics, and offers a great set of materials including sample forms, drafting tips, sample language, and resources.
If you work with special needs trusts—or want to learn how to use, draft, fund and administer them—do not miss this program!
Check the conference website for more information and updates.
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.
Tuesday, June 20, 2017
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.
Monday, June 19, 2017
Stuart Ross, a former insurance executive, sold his Puerto Rico-based company twelve years ago. Ross has since enjoyed the fruits of his success with multiple homes and extensive international travel. But, like anyone else, while Ross and his wife travel, the bills and other burdens of daily life pile up. To handle these day-to-day issues, Ross hired Total Personal Services. Total Personal Services, based in Garden City, N.Y., performs the mundane tasks of sorting through personal mail, paying bills, arranging international transfers, and setting up routine household services. Unlike a family office, this service only provides for helping with basic, daily tasks, not providing money management and family coordination services. Ross offers some advice for those wanting to take dream vacations but have difficulty escaping the tedium of daily life: “I would say there are really good options to deal with it and life is short—take the trip.”
See Liz Moyer, Your Child’s Tuition Is Paid While You’re in Tahiti, The New York Times, June 16, 2017.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Friday, June 16, 2017
Article on Everybody Dies. Or, A Consideration of Simultaneous Death Statutes and the Struggles of the Self-Represented
Victoria J. Haneman recently published an Article entitled, Everybody Dies. Or, A Consideration of Simultaneous Death Statutes and the Struggles of the Self-Represented, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
The access to justice problem has been the cause célèbre of the social justice movement in the United States for many years, with calls for the legal community to support legal services programs and contribute pro bono hours. The stark reality is that while sixty-one million people are potentially eligible to receive legal aid, most will find themselves unassisted when need arises. Sadly, however, the access to justice problem in this country reaches beyond the poorest and most disadvantaged. Working-class and middle-income individuals are ineligible for legal services programs but often find themselves unable to afford standard attorney rates. This forces a significant portion of the population to either ignore legal issues or take resolve matters on their own. Those who need representation to avoid the foreclosure of their homes or the loss of parental rights will need to navigate a complicated system on their own.
There is consensus that the need for affordable legal services far outstrips access to affordable legal services, and the rising number of self-represented individuals burdens the system. The greatest impact is arguably felt in the probate, family and housing court systems. There is not, however, consensus as concerns the best way in which to meaningfully address the issue. Dissonance also exists as as to the best ways in which to meaningfully offer assistance and allocate limited resources to the underrepresented and unrepresented.
While access to information through technology should allow basic legal issues to be resolved in an efficient and predictable manner, the reality is that the complexity of the system interferes. It is a system designed to accommodate the represented. To this end, an overarching purpose of this Article is to explore the idea of revising probate statutes to protect the self-represented from an obvious pitfall, especially when and where it is clear that the underrepresented and unrepresented are going to imminently fall into the pit. In the context of estate planning, this Article will frame the discussion within the context of an obvious flaw that presently exists in states that allow holographic wills: protection of the layperson from simultaneous or closely proximate death scenarios.
It is possible to preserve some of your estate for possible heirs while still maintaining eligibility for Medicaid. Placing assets in an irrevocable trust may shield assets from consideration for the Medicaid asset limit. A trust is a legal entity that splits legal and equitable title. The individual setting up the trust is the settlor (legal) or grantor (tax), the trustee has legal title, and the beneficiary has equitable title. It is possible for the settlor to retain equitable title and receive the benefits of the trust. An revocable trust leaves power with the settlor to end the trust and take back legal and equitable title. These types of trusts would not avoid consideration for Medicare eligibility. Irrevocable trusts cannot be ended by the settlor and may shielded from consideration for Medicare eligibility.
Income-only irrevocable trusts provide for the income earned by the trust to paid to the beneficiary, you in this case, while leaving the principal untouched and available for distribution to children or other putative heirs. Although the principal of this trust is not considered a resource for Medicaid purposes, if you move to a nursing home, the income will be paid to the nursing home. Be aware, this subset of trusts is very rigid and the settlor gives up significant power over the principal. Though trusts are versatile and may be excellent instruments for avoiding issues with Medicaid eligibility, it is extremely important to speak to an estate planner or an experienced trusts attorney before moving forward with this option.
See Isaac Yedid & Raymond Zeitoune, Planning Ahead For Medicaid Approval, Yeshiva World News, December 12, 2016.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.