Sunday, March 18, 2018
Jessica Palmer recently published an Article entitled, Theories of the Trust and What They Might Mean for Beneficiary Rights to Information, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
The trust is a mental construct used to explain a type of guardianship of property. There are traditionally two ways to understand the trust - one sees the trust as creating proprietary rights and duties; the other as establishing personal rights and duties as between the trustee and beneficiary. This articles considers the evidence for both and argues that it is important to clarify the conceptual basis of the trust because it can affect the substance of trusts law. This point is illustrated by the various answers that have been given to the particular question of whether beneficiaries have a right to access trust information.
Friday, March 16, 2018
E. Gary Spitko recently published an Article entitled, 'Undemocratic' Trusts and the Numerus Clausus Principle, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
In Democracy and Trusts, Professor Carla Spivack argues that, pursuant to the numerus clausus principle, a court is empowered to impair legislation authorizing a certain trust form where the legislation was not the product of "democratic decision-making." This imaginative claim is predicated upon two antecedent claims. First, Professor Spivack argues that the numerus clausus principle should apply to equitable interests. Second, she argues that the numerus clausus principle does not invest legislatures with the sole authority to determine allowable property forms; rather, courts also have an important role to play in composing the list of property forms. This review essay first briefly considers the two antecedent arguments before evaluating Professor Spivack's main claim that, in certain circumstances, the numerus clausus principle bestows upon courts a type of veto power over trust legislation.
Wednesday, March 14, 2018
Jessica Palmer recently published an Article entitled, Dealing with the Emerging Popularity of Sham Trusts, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
This article considers the doctrines of sham trusts and alter egos currently causing some controversy among trust lawyers. The author analyses recent decisions of the High Court involving allegations of sham trusts and alter egos and relevant authorities from other jurisdictions and assesses the legitimacy of the concepts in the context of established trusts law. While the author accepts the existence of sham trusts, she advocates for a narrower ambit limiting their application only to ab initio shams and rejects both emerging shams and alter egos. Further, the relevant intention with which sham trusts are concerned is only that of the settlor and there should therefore be no requirement of a common sham intention as a prerequisite to finding a sham trust.
Tuesday, March 13, 2018
Jessica Palmer & Charles E.F. Rickett recently published an Article entitled, The Revolution and Legacy of the Discretionary Trust, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
The requirement of object certainty in express trusts underwent significant reform in the heady days of the late 1960s and early 1970s. This article argues that those changes have had important implications not only for the theoretical conception of the trust, but also for the modern practice of discretionary trusts.
Monday, March 12, 2018
The National Business Institute is holding a conference entitled, Drafting Effective Wills and Trusts, which will take place on Thursday, March 15, 2018 at the Millennium Maxwell House Hotel in Nashville, TN. Provided below is a description of the event:
Help Your Clients Meet Their Estate Planning Needs
Do you have a clear understanding of the basic tax issues, medical decisions, and planning documents that can complicate the estate planning and probate processes? Are you prepared to answer your clients' tough questions about planning for final wishes? Attend this seminar to gain insight into the fundamentals of preparing estate planning documents, including wills, trusts, and ancillary documents. Discover the pros and cons of using various types of documents, as well as the tax ramifications involved. Register today!
- Choose the planning document that is best suited for your client.
- Provide protection for minors, incompetent persons, and beneficiaries with special needs.
- Learn how and when to use revocable living trust, pour-over wills, and durable powers of attorney.
- Reduce your clients' future tax burdens.
- Use a living will or durable power of attorney for health care to help the client control end-of-life medical decisions.
- Handle ethical issues that arise in estate planning, such as competency of the client and conflicts of interest.
Who Should Attend
This basic level seminar will provide fundamentals of drafting wills and trusts for:
- Trust Officers
- Tax Professionals
- Fundamental Principles of Will Drafting
- Using Living Trusts and Powers of Attorney as Estate Planning Tools
- Basic Tax Considerations - What You Need to Know in Order to Choose the Appropriate Plan
- Ethics and Estate Planning
- Planning Methods to Control Medical Treatment
Continuing Education Credit
Continuing Legal Education – CLE: 6.00 *
Financial Planners – Financial Planners: 7.00
International Association for Continuing Education Training – IACET: 0.60
National Association of Legal Assistants, Inc. – NALA: 6.00 *
National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 7.00 *
National Federation of Paralegal Associations, Inc. – NFPA
Professional Achievement in Continuing Education – PACE: 7.00 *
* denotes specialty credits
Thursday, March 8, 2018
Across the centuries, the law of trusts evolved on the assumption that full power to administer a trust would belong to a trustee. A directed trust departs from this tradition by granting a power over a trust to a person who is not a trustee. The fundamental policy question arising from the emergence of directed trusts is how the law of trusteeship should be divided among a directed trustee and trust director. The Uniform Law Commission has just finished work on the Uniform Directed Trust Act (UDTA), which provides clear, practical, and comprehensive solutions to all of the major legal difficulties in a directed trust. At the same time, the UDTA offers a host of technical innovations that dramatically improve on existing directed trust statutes, and that point to a variety of drafting practices for directed trusts that could be improved in all states. In this session, Professors Robert Sitkoff (Harvard) and John Morley (Yale), respectively the Chair and the Reporter for the UDTA drafting committee, will discuss the UDTA and what it means for directed trust practice.
Tuesday, March 13, 2018
12:30-1:30 pm ET
(11:30 am CT, 10:30 am MT, 9:30 am PT)
John D. Morley, Professor of Law, Yale Law School
Robert H. Sitkoff, John L. Gray Professor of Law, Harvard Law School
David English, University of Missouri
Register now for this FREE program and join us every second Tuesday of each month for a discussion of these and other current issues. (The content of this program does not meet requirements for continuing legal education (CLE) accreditation. You will not receive CLE credit for this program).
New Mexico has enacted the Uniform Directed Trust Act (UDTA). Rob Sitkoff served as the drafting committee char, Turney Berry served as the co-chair, and John Morley was the reporter. UDTA addresses the increasing popularity and use of directed trusts. In a directed trust, an individual other than the trustee has power over some aspect of the administration of the trust. These individuals may be referred to "trust directors," trust advisors," or "trust protectors."The division of power between the trustee and the trust director can create issues relating to fiduciary duty and power. UDTA offers clear, functional guidelines that allow a settlor to structure a direct trust while saving important fiduciary safeguards for beneficiaries.
See Directed Trust Act, Uniform Law Commission, 2018.
Special thanks to Jack Burton for bringing this article to my attention.
Wednesday, March 7, 2018
Lisa Marie Presley, Elvis Presley’s daughter, has filed suit against Barry Siegel, her former manager, for $100 million. She claims that Siegel mismanaged trust assets provided for her by her father. Specifically, Presley is alleging that Siegel botched a 2005 deal that gave up the trust’s interest in Elvis Presley Enterprises for a stake in Core Entertainment, which reportedly went bankrupt a year later. Siegel’s attorney offered a stinging retort: “The 2005 deal she is complaining about now cleared up over $20 million in debts Lisa had incurred and netted her over $40 million cash and a multi-million dollar income stream, most of which she managed to squander in the ensuing years.” He scathingly added: “It’s clear Lisa Marie is going through a difficult time in her life and looking to blame others instead of taking responsibility for her actions.”
See Morgan M. Evans, Lisa Marie Presley Sues Former Manager for $100 Million After Announcing Massive Debt, Fox News, February 23, 2018.
Alvin See recently published an Article entitled, Revisiting Sham Trusts: Common Intention, Estoppel and Illegality, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
This article examines the prevailing view that, to find a sham trust, the settlor’s shamming intention must be shared by the trustee. This common intention requirement, it is argued, overprotects the trustee and the beneficiary, and suffers from inconsistent application to conceptually identical cases. Moreover, where the sham is concocted for the perpetuation of an illegal purpose, the requirement may contradict the operation of the illegality doctrine. This article proposes that the two doctrines ought to align and that any prejudice to an innocent trustee or beneficiary can be addressed with more specific solutions such as a change of position defence or an analogous estoppel defence.
Tuesday, March 6, 2018
CLE on Representing Estate and Trust Beneficiaries and Fiduciaries: Death is No Excuse - Postmortem Planning to Minimize Taxes
The American Law Institute is hosting a conference entitled, Representing Estate and Trust Beneficiaries and Fiduciaries:
Death is No Excuse - Postmortem Planning to Minimize Taxes, which will take place on Tuesday, March 13, 2018 via video webcast. Provided below is a description of the event:
Why You Should Attend
A client’s death brings with it a host of planning and tax considerations, including the payment of income taxes after death. Valuation choices, portability, a tax deferral election, disclaimers, and estate and income state deductions are just some of the tools estate planners can use to minimize the decedent’s total tax obligation and maximize the net value passed on to beneficiaries.
What You Will Learn
Join nationally recognized estate practitioner Amy Kanyuk, a Fellow of the American College of Trust and Estate Counsel, for this information-packed webcast and examine the myriad tax planning opportunities and elections that may be available to estate planners and their clients to minimize income and estate taxes for the decedent’s estate. Topics to be discussed include:
Income tax considerations: Decedent’s final income tax returns, fiduciary returns, taxation of distributions, basis adjustments at death, the 65-day rule, Section 645 election, issues related to the inclusion of S corporation stock in the estate
Estate tax considerations: Alternate valuation date matters, estate and income tax deductions, disclaimers, Section 6166 election, disclaimers, portability of the decedent’s unused exemption amount
This highly-rated session was originally presented at the American Law Institute Continuing Legal Education course, Representing Estate and Trust Beneficiaries and Fiduciaries, on July 14, 2017. Register now and get a front row seat at the rebroadcast! Questions submitted during the program will be answered by email within two business days of the program.
Need this information now? Purchase the on-demand course here. Questions submitted on-demand will be answered within two business days.
Who Should Attend
Attorneys and other estate planning professionals who provide guidance and strategies for transferring wealth and reducing estate taxes will benefit from this accredited continuing legal education program from ALI CLE.