Wills, Trusts & Estates Prof Blog

CLE on State Death Taxes

The American Bar Association Section of Real Property, Trust & Estate Law is sponsoring a 90-minute teleconference and live audio webcast entitled Pulling Back the Curtain: Dealing with Oft-Overlooked State Death Taxes on September 14, 2010. The program information is below:

For many years, the federal estate tax credit for state death taxes meant that many estate plans did not need to consider the impact of those taxes on a client's estate planning. Since the credit was phased out and then replaced with a deduction in 2005, many states have decoupled, enacting estate or inheritance taxes that can be traps for the unwary. Clients living in states that do not have a death tax may own property in states that do. Our panel will discuss:

• Common approaches to state death tax legislation and responses to changing federal law
• Recent developments regarding state death taxes
• How state death tax statutes may (or may not) apply, with an emphasis on planning opportunities (e.g., "state only" QTIP elections, death-bed transfers, etc.)

Removal of Independent Executor

In In re Estate of Hoelzer, 310 S.W.3d 899 (Tex. App.—Beaumont 2010, pet. filed), after Step-mother died, Son was appointed as the successor independent executor of Father’s estate.  He then filed a claim against Father’s estate on behalf of himself and his three siblings for reimbursement of funds Step-mother received as the result of asbestos litigation about twenty years ago.  The probate court removed Son because the courts had previously determined that Son and his siblings were not creditors of their father’s estate and that any potential claims were time-barred.  Thus, under Tex. Prob. Code § 149C, Son’s actions constituted gross misconduct and gross management as well as showing that he was about to misapply estate funds.  Son appealed.

The appellate court affirmed explaining that there was sufficient evidence to show that Son’s actions were inappropriate under § 149C.  All that was necessary was for the trial court to determine that sufficient grounds appeared to support the belief that Son has misapplied or is about to misapply property of the estate, that is, to pay a judgment-barred claim.  It is not necessary for court to be absolutely certain that misapplication has occurred or may occur in the future.

Moral:  An independent executor should not pay judgment-barred claims, especially to himself and his relatives.

Another issues was raised in the same case.  Texas Probate Code § 149C provides that the court may remove an independent executor after the executor is cited by personal service to answer at a time and place fixed in the notice.  This specific provision governs over Texas Rule of Civil Procedure 245 which requires at least a notice of 45 days.  Thus, the Probate Court may require the executor to answer sooner than 45 days.  In addition, the court held that service on the executor’s attorney by any method satisfies the personal service on the executor requirement.  See Prob. Code § 33(f)(1).

Moral:  An executor must read any service of process carefully to determine the time by when an answer is required and cannot rely on the general 45 day rule.

Uncovering Bock's Misconduct

I previously mentioned the beginning of an investigation into Clark’s attorney, Wallace Bock. Since then, Bock’s former paralegal, Cynthia Garcia, has come forward with some valuable information. After 9/11, Bock had Garcia write to Clark asking her for $1.5 million to build a bomb shelter in Israel for Bock’s daughters and grandchildren. Within an hour, Clark sent a check for that amount to Bock. Bock also contacted Garcia recently, asking her to keep quiet about his dealings with Clark.

See Dan Mangan, 104-Year-Old Heiress Gave Lawyer ‘Millions’ in Gifts, N.Y. Post, Aug. 29, 2010.

Problems Caused by Surprise Liens

Chad J. Pomeroy (attorney, Salt Lake City, UT) recently published his article entitled Ending Surprise Liens on Real Property, Nev. L. Rev. (forthcoming). The abstract provided on SSRN is below:

Academics, law makers, and the general public have long believed that secret liens are problematic. In real property, these are liens that are not recorded in the real property filing system. Secret liens become especially problematic when they are enforced, despite their secrecy, against subsequent purchasers of the property. If the purchaser does not satisfy the lien by paying the underlying debt, the lien holder can foreclose on the property. One of the main purposes of having real property recording statutes was to avoid surprise liens (secret liens afforded priority over subsequent purchasers) and ensure that real estate purchasers and investors are fully informed. Yet surprise liens continue to exist and are, in fact, increasingly accepted by lawmakers.

This Article examines two prototypical surprise liens – federal estate tax liens and mechanics' liens – and proposes that these are indicative of a trend wherein modern lawmakers are increasingly tolerant of surprise liens. This Article then examines potential justifications for this deviation from the longstanding preference against these types of liens. First, some argue that property filing systems are economically inefficient. Second, some argue that creditors and purchasers do not actually check property filing systems. Finally, the Article identifies and addresses the possibility that law makers justify surprise liens based upon the identity of the lienor.

After examining these arguments, this Article concludes that the first two justifications are convincingly countered by existing economic theory and circumstances and that creditors and buyers do, in fact, rely on real property records. This leaves lienor identity as the true driver behind the rising acceptance of surprise liens. This justification, identified herein, is ultimately based upon the perceived social economic benefits arising from granting these favored classes the right to surprise liens. A careful examination of the full economic consequences of surprise liens, however, demonstrates that this justification is not sufficient and ultimately self-defeating.

Granting special rights to certain classes of lienors imposes higher individual costs than is commonly believed and also creates significant costs that likely counter any social economic benefits actually created. Additionally, surprise liens (even if economically justified) defeat basic conceptions of fairness inherent in the American system of jurisprudence and arising out of basic concepts of due process and social ethics. This Article therefore concludes that these liens should be removed through a strengthening of recording concepts at both a state and federal level.

Guardianship Expert Sharon Gardner Authors Guardianship Blog

One of the foremost experts in guardianship law in Texas, Sharon Gardner (Shareholder, Crain, Caton & James, Houston, Texas), is now authoring a blog entitled Gardner on Guardianships.

This blog should prove to be useful to attorneys and lay individuals alike.

Unsuitability of Named Executors

In In re Estate of Gay, 309 S.W.3d 676 (Tex. App.—Houston [14^th Dist.] 2010, no pet. h.), Brothers asserted that they were their deceased father’s “personal representatives by testamentary designation” to the United States Court of Appeals for the Tenth Circuit so they could be substituted as a party to a lawsuit that was pending at the time of their father’s death.  In reality, they had not been appointed by a court as their father’s personal representatives.  When they later attempted to be appointed as their father’s independent executors, the court probate court determined that they were “unsuitable” under Prob. Code § 78(c) because they misrepresented themselves before a federal tribunal.  Brothers appealed.

The appellate court held that the probate court abused its discretion and acted without reference to guiding rules and principles by refusing to appoint Brothers.  The court looked closely at what the Brothers actually told the court.  They only said they were “named” as independent co-executors which was true.  They never claimed that had been actually appointed.  In addition, Brothers’ actions were designed to benefit their father’s estate by defending an appeal.  The court also noted that the primary beneficiary of the will, the decedent’s wife (Brothers’ mother) was in favor of their appointment having declined to serve as the independent executrix despite being first named in the will.

Moral:  A court will attempt to permit the named executor to serve because of a long-standing tradition of permitting a testator to select his/her executor.  Nonetheless, prudent practice is to not “cut hairs” by making statements such as, “I’ve been named as the executor” when you have not been officially appointed unless you clearly indicate the fact of non-appointment.

Top SSRN Downloads

Here are the top downloads from June 30, 2010 to August 29, 2010 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	370	2009 Developments in Connecticut Estate and Probate Law John R. Ivimey, Jeffrey A. Cooper, Reid and Riege, P.C., Quinnipiac University School of Law, Date posted to database: May 27, 2010 Last Revised: August 22, 2010
2	181	Ending Surprise Liens on Real Property Chad J. Pomeroy, Fabian & Clendenin, P.C., Date posted to database: June 29, 2010 Last Revised: July 31, 2010
3	73	Curtailing Dead-Hand Control: The American Law Institute Declares the Perpetual-Trust Movement Ill Advised Lawrence W. Waggoner, University of Michigan at Ann Arbor - Law School - Faculty, Date posted to database: May 24, 2010 Last Revised: July 13, 2010
4	66	Morgens: More QTIP Mischief Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: July 24, 2010 Last Revised: July 24, 2010
5	60	The American Law Institute Proposes Simplifying the Doctrine of Estates Lawrence W. Waggoner, University of Michigan at Ann Arbor - Law School - Faculty, Date posted to database: May 22, 2010 Last Revised: June 16, 2010
6	44	The American Law Institute Proposes a New Approach to Perpetuities: Limiting the Dead Hand to Two Younger Generations Lawrence W. Waggoner, University of Michigan at Ann Arbor - Law School - Faculty, Date posted to database: May 24, 2010 Last Revised: July 13, 2010
7	43	Son of the Trust Code - The Iowa Trust Code after Ten Years Martin D. Begleiter, Drake University Law School, Date posted to database: May 20, 2010 Last Revised: May 21, 2010
8	36	Congress Should Impose a Two-Generation Limit on the GST Exemption: Here's Why Lawrence W. Waggoner, University of Michigan at Ann Arbor - Law School - Faculty, Date posted to database: July 17, 2010 Last Revised: July 21, 2010
9	32	Helping Nonprofits Police Themselves: What Trust Law Can Teach Us About Conflicts of Interest Melanie B. Leslie, Cardozo Law School, Date posted to database: July 19, 2010 Last Revised: July 19, 2010
10	30	Charity for the 'Death Tax': The Impact of Legislation on Charitable Bequests Kristine S. Knaplund, Pepperdine University School of Law, Date posted to database: August 10, 2010 Last Revised: August 10, 2010

Using Life Insurance to Protect Assets

Ike Z. Devji (attorney, Phoenix, AZ) co-authored an article entitled What is an alternative to my current cash position that will protect my money from litigation?, Worth Magazine (Oct.-Nov. 2009). The article, provided in full, is below:

In our current economic environment, many clients want their money safe and liquid. When most people consider “safe” and “liquid,” they immediately think of their bank. However, what most people do not know is that their checking or savings account is unprotected from a very real threat: the exposure to an increasingly hostile and predatory litigation system. Consider this: There are tens of thousands of lawsuits filed each day in this country. The average legal cost of defending a frivolous lawsuit is $91,000, plus the settlement amount itself. The number of lawsuits increases in tough economic times as people look to your wealth as an additional source of income.

Our team often takes commonly used tools and redesigns them to provide protection of client assets, while allowing clients to retain control and liquidity. The situations below demonstrate the benefits of a strategy we are using in which we take a universal life insurance policy and design it to provide 98 to 102 percent cash surrender value in the first year.

Current Situation—Cash in the Bank

A healthy 45-year-old male client has a bank checking account with $1 million. He rarely uses this account, but he keeps his money there because he likes to have a certain amount of funds liquid in case he needs to access it quickly. Here is how this account works:

• The account earns about 1 percent interest per year, with income taxable as ordinary income.
• If the client is sued for any reason and loses, the judge can order the transfer of the assets from the client’s checking account and into the plaintiff’s pockets. This may sound like an unlikely scenario, but we see it, and the threat of it, often.
• If the client dies, the named beneficiaries will receive the $1 million minus the taxes due. 
• If the client needs to use the money, he is able to take the amount needed.

Creditor-Protected Cash Alternative

The strategy our team has designed allows the same client to place the $1 million into a specially designed universal life insurance policy and insurance trust structure by paying a premium amount of $500,000 in each of the first two years. The policy will provide the following benefits:

• The account will earn a net interest of about 1 percent annually invested in the policy’s fixed account, and the gains are allowed to grow tax-deferred.
• If the client is sued for any reason and loses, the money in this account is 100 percent creditor-protected from day one.
• If the client dies, the named beneficiaries will receive a death benefit of $10,624,682, the face amount associated with this specific example.
• If the client needs to withdraw all or part of the money in the account, he is able to do so at any time with no fees or surrender charges, and he will have access to the money within a week.

Our strategy, needless to say, is a very powerful tool that keeps a client’s money liquid and safe.

Giving Gifts to Save on Taxes

As people focus on the estate tax mess this year, they overlook the upcoming negative changes to the gift tax.  Currently, the gift tax is 35%, the lowest it’s been since the 1930s. Next year, the gift tax rises to 55%.  Another reason to give gifts away sooner rather than later is that asset values are still depressed. Giving away assets now will allow them to appreciate with your heirs rather than in your estate.

In addition, giving gifts to grandchildren is much cheaper this year than it will be next year due to the lack of the generation skipping tax. For example, a $3 million gift to a grandchild will cost the donor $4.05 million this year but approximately $7.2 million next year.

For more information about giving gifts as an estate planning tool, see Paul Sullivan, A Year to Give to Your Heirs, and Save on Taxes, N.Y. Times, Aug. 27, 2010.

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

Record of an Old Rabbanite Court Regarding an Inheritance Issue

Jacob Olidort (Ph.D. candidate, Princeton University) recently published his article entitled Qaraite Inheritance Law Deliberated in a Rabbanite Court (June 29, 2010). The abstract provided on SSRN is below:

The following paper examines a previously-unpublished Geniza document: a record of a Rabbanite court in Fustat (Old Cairo), Egypt, dated August 2, 1078, in which two Qaraite sisters attempt to claim the inheritance left to them by their deceased cousin. In presenting this document, the study attempts to accomplish three general aims. First, the study brings to light the original Geniza document by offering a transcription and annotated translation of its contents. Second, it attempts to place the document in its, historical, social and legal contexts. Finally, in comparing the details of the proceedings of this case with the discussions on inheritance law found in legal manuals in the Rabbanite, Qaraite and Islamic traditions, it is hoped that the study might elucidate the dynamics between the written law with its arbitration, the way in which the neighboring communities interacted, as well as how and whether their interpretation was influenced by such exchange.