Monday, July 25, 2005
The Summer 2005 issue of ACTEC Journal contains an outstanding article which explains to lay individuals the duties and responsibilities of being a trustee. As stated in the article,
It should be of great benefit to clients in deciding whether to act as a trustee and to [ACTEC] Fellows in advising clients on what it means to be a trustee.
Fiduciary Matters Subcommittee of the ACTEC Practice Committee, What It Means to Be a Trustee: A Guide for Clients, 31 ACTEC J. 8 (2005).
To be an heir, an individual must outlive the intestate. At common law and under the 1953 version of the Uniform Simultaneous Death Act, an heir needed to survive the intestate for only a mere instant to be entitled to inherit. This rule lead to many proof problems as family members tried to prove that one person outlived the other or vice versa. Some of these cases read like horror novels as the courts evaluate evidence of which person twitched, gurgled, or gasped longer.
In one old case, Crown Elizabeth 503, a father and son were, in the words of Blackstone:
"both hanged in one cart, but the fon was fuppofed to have furvived the father, by appearing to ftruggle longeft ; whereby he became feifed of an eftate by furvivorfhip."
Most jurisdictions now impose a survival period, that is, the heir must outlive the intestate by a statutorily mandated length of time before being entitled to inherit. Under the 1991 version of the Uniform Simultaneous Death Act and UPC § 2-104, the heir must outlive the intestate by 120 hours (5 days). If an heir survives the intestate but dies prior to the expiration of the survival period, the intestate’s property passes as if the heir had actually predeceased the intestate.
Sunday, July 24, 2005
The MetLife Market Survey of Nursing Home & Home Care Costs revealed tremendous cost differences among cities for the same basic type of room and standard of care.
The average daily rate for a private room is $192 ($70,080 per year).
Here are cities with rates significantly below average:
- Shreveport, LA ($99)
- New Orleans, LA ($107)
- Kansas City, MO ($129)
- St. Louis, MO ($130)
Here are cities with rates significantly above average:
- Stamford, CT ($331)
- New York, NY ($312)
- San Francisco, CA ($293)
- Boston, MA ($284)
Thus, an elderly individual considering relocating should give serious consideration to the cost of nursing home care when deciding where to live.
Saturday, July 23, 2005
The April 2005 issue of the Real Estate, Probate and Trust Law Section Reporter published by the State Bar of Texas is now available on-line.
The topics covered by this issue applicable to estate planning include:
- Recent Developments
- Trust Law
- Probate Law
- Guardianship Law
- Estate/Gift Taxation Law
- Marital Property Law
- Elder Law
William A. Faulk, Conveyancing and Authority Issues -- This article includes an extensive discussion of resolving conveyancing problems through probate.
Friday, July 22, 2005
An earlier entry in this blog discussed how the Tax Court will no longer keep secret reports of special trial judges.
An article in today's (July 22, 2005) ABA Journal eReport by Geri L. Dreiling, Tax Court Secrets Revealed -- Policy Change Will Make Public Trial Court Reports That Were Formerly Off-Limits, provides additional insight into this significant development.
Here are some excellent resources dealing with Circular 230 prepared by Jonathan G. Blattmachr, Mitchell M. Gans, Diana S.C. Zeydel, & Tracy L. Bentley
The Application of Circular 230 to Estate Planners (extensive article) (with Michael L. Graham but without Zeydel & Bentley)
Thursday, July 21, 2005
On July 20, 2005, the actor James Doohan passed away at age 85. Mr. Doohan is well-known for his portrayal of the chief engineer, Scotty, on the Enterprise, a starship traversing the universe in the television and movie Star Trek franchise.
It appears that Scotty planned well for his trip to the final frontier.
[James] told relatives he wanted his ashes blasted into outer space, as was done for "Star Trek" creator Gene Roddenberry. * * *
Houston-based Space Services Inc., which specializes in space memorials, plans to send a few grams of Doohan's ashes aboard a rocket later this year. The remains, which will be sealed in an aluminum capsule, will eventually burn up when they re-enter Earth's atmosphere.
See James Doohan to be sent to his final frontier, CNN.com, July 21, 2005.
In Securing Future for a Disable Child, USA Today, June 24, 2005, Sandra Block provides an overview of factors that a parent of a disabled child should consider to provide for the child's care such as a special needs trust.
The key considerations for a special needs trust include:
- a letter of intent,
- a carefully selected trustee, and
- a proper method of funding the trust.
The article also reports a MetLife survey that a majority of parents of special needs children have not even prepared a will.
Wednesday, July 20, 2005
In 2003, Whitlowe Green died of cancer at age 88. His family was tremendously surprised when they learned that he left $2.1 million to Prairie View A&M University.
Mr. Green was a teacher in Houston making less than $30,000 a year. However, he was very thrifty. Here are some of things his family and friends said he would do:
- Buy expired meat products,
- Purchase secondhand clothing, and
- Divide gas bill among adults when the family took driving vacations.
See Frugal public school teacher donates $2.1 million US to alma mater, Yahoo Canada News, June 20, 2005.
John W. Randolph, Jr. of the law firm of Pressly & Pressly in West Palm Beach, Flordia along with New York University graduate tax law student, Jennifer Gurevitz, have authored an insightful article discussing the Opportunities and Pitalls with Non-Pro Rata Distributions to Residuary Beneficiaries, Prob. & Prop., July/Aug. 2005, at 60.
Here is an excerpt from the authors' conclusion:
An attorney should point our to the fiduciary the benefits of making non-pro rata distributions, such as reducing beneficiary income taxes, fostering charitable planning, alleviating the necessity to cause distributions of fractional interests in assets such as real estate, enhancing beneficiary asset value, avoiding the difficulties surrounding distribution of odd lot securities * * * and allowing for the distribution of a particular asset desired by a beneficiary. At the same time, however, fiduciaries must understand the numerous pitfalls that can arise with making non-pro rata distributions. These pitfalls include recharacterization as a taxable exchange among beneficiaries, the potential for an individual beneficiary to be subject to income tax on assets received by a charitable beneficiary, and the possibility that distributions will not be economically proportionate, whether because of improper valuation or varying tax bases of the distributed property.