Wills, Trusts & Estates Prof Blog

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

Friday, August 30, 2013

Top 10 Investor Tax Errors

IRS-100wiRecently, Accounting Today conducted a survey of investment advisors that revealed the top ten errors made by investors. Investing can be very tricky so avoiding these issues may save an investment portfolio.

  1. Not thinking strategically about short term v. long term gains
  2. Holding foreign stock investments in tax-qualified accounts
  3. Keeping gold and silver in a taxable account
  4. Selling appreciated securities by elderly investors
  5. Non-business related income in tax qualified accounts
  6. Not checking the local tax laws
  7. Not taking into account a Roth in an IRA conversion
  8. Not taking advantage of capital gains
  9. Failing to calculate the cost basis for MLP's
  10. Failing to keep up with pension plan obligations

See John Burke and Steven Criscuolo Top 10 Mistakes Made by Investors, Accounting Today,  Aug. 21, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

August 30, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

CLE on Trust Protectors: When and How to Use Them

CLEThe American Legal Institute is offering a CLE program entitled, Trust Protectors: When and How to Use Them, on Wednesday September 4, 2013 at 11:00- 12:00 pm Eastern.  Provided below is a description of the event:

Why You Should Attend

Trust protectors, persons who essentially stand in the shoes of the settlor, were originally deployed in the context of offshore trusts to give settlors better control over assets and protection from creditors. More recently, trust protectors have been used to ensure that the settlor’s intent is being implemented even after death, and to provide flexibility in trust administration.

Join preeminent trust and estate experts, Kathleen R. Sherby, Justin T. Flach, and Professor Richard C. Ausness, as they explore when and how to use trust protectors in this audio CLE webcast from ALI CLE.

What You Will Learn

Topics include:

  • trust protectors: what they are (including definitions in both statutory and case law) and what they do
  • whether trust protectors are agents or fiduciaries, and for whom
  • pros and cons of using a trust protector (in addition to a trustee) for your clients who use trust agreements to manage and distribute their assets
  • standard of care applicable to trust protectors
  • essential trust provisions for defining within the trust instrument the scope of trust protector powers and duties

This replay was originally presented on July 26, 2012, and then again on June 21, 2013. Questions submitted during the replay of this program will be answered by email within two business days.

Need this information now? Purchase the on-demand archive of this program here. [please note: questions submitted during the on-demand are not guaranteed to be answered within 2 business days]

August 30, 2013 in Conferences & CLE, Trusts | Permalink | Comments (0) | TrackBack (0)

Article on Indescedibility

SsrnDavid Horton (University of California) has recently published an article entitled, Indescendibility, (August 16, 2013). California Law Review, Vol. 102, 2014. Provided below is the introduction to the article:

Supposedly, one of the most important sticks in the bundle of property rights is the power to transfer an asset after death. This Article explores objects and entitlements that defy this norm. Indescendibility — property that cannot be passed by will, trust, or intestacy — lurks throughout the legal system, from constitutional provisions barring hereditary privileges, to statutes that prohibit decedents from bequeathing their valuable body parts, to the ancient but misty doctrine that certain claims do not survive the plaintiff, to more prosaic matters such as season tickets, taxi cab medallions, frequent flier miles, and social media accounts. The Article first identifies the common policy underpinnings of these diverse rules. It compares the related issue of market inalienability — property that can be given away but not sold — and concludes that indescendibility often serves unique objectives. In particular, forbidding posthumous transfer can avoid administrative costs.

The Article then uses these insights to propose reforms to the descendibility of body parts, causes of action, and items made non-inheritable by contract.

August 30, 2013 in Articles, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Thursday, August 29, 2013

Legislative Changes in Arizona


The Arizona Legislature has made several changes affecting estate planning, effective September 12. 

Simplified probate proceedings will now be possible for more small estates.  Persons entitled to personal property valued at less than $50,000 were entitled to collect it with a simple affidavit.  The real property limit was $75,000.  Now, the personal property limit will go up to $75,000 and the real property limit will go up to $100,000.

Further, the Arizona legislature has explicitly protected Section 529 plan accounts, which set aside money for children’s education, from bankruptcy.

The Arizona legislature has also made it more difficult for surviving spouses to legitimately withdraw money from trusts that become irrevocable after the death of their spouse. 

See Robert Fleming, Arizona Legislative Changes Effective September 12, Fleming & Curti PLC, Aug. 26, 2013.

Special thanks to Naomi Cahn (John Theodore Fey Research Professor of Law, George Washington University School of Law) for bringing this article to my attention.

August 29, 2013 in Estate Administration, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0) | TrackBack (0)

Fraudster Given 22 Years for Ripping Off Charitable Donors


Samuel or Mouli Cohen will serve 22 years after being found guilty of wire fraud and money laundering.  Cohen received a sentencing enhancement for misrepresenting he was acting on behalf of a charity.

Cohen pretended Microsoft would soon acquire a company he co-founded named Ecast and that he was interested in donating $60 million to charity.  He offered the Vanguard Public Foundation shares in his company, promising half of profits would go to charity. 

In reality, no deal had been made with Microsoft and Ecast had fired Cohen.  Cohen and Vanguard’s former president, Hari Dillon, then milked $31 million from individuals associated from Vanguard.  Dillon was sentenced to 40 months after testifying against Cohen.

See Lorraine Bailey, Extra-Long Sentence for Cheating the Charitable, Courthouse News Service, Aug. 23, 2013.

August 29, 2013 in Current Affairs, New Cases | Permalink | Comments (0) | TrackBack (0)

Rauschenberg Trustees Seeking $60 Million in Fees


Before Robert Rauschenberg’s death in 2008, the inventive artist appointed three good friends and business associates as trustees.  These three men were tasked with administering his over $600 million estate as well as protecting the welfare of the Robert Rauschenberg Foundation.

The trustees now seek at least $60 million in fees, which an expert hired by the artist’s charitable foundation believes would amount to a $40,000-an-hour wage.  To date, the three trustees have paid themselves a combined $5.7 million in fees and received $3.9 million for work they have done as consultants for Rauschenberg’s business. 

The trustees admit they have not kept records of their work.  However, they believe $60 million or more would be “reasonable” for all the trouble they have been through for the trusteeship.

See Patricia Cohen, Foundation Fights Fees for Artist’s Trustees, The New York Times, Aug. 21, 2013.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

August 29, 2013 in Current Affairs, Estate Administration, Trusts | Permalink | Comments (1) | TrackBack (0)

Outline on the Federal Estate Tax


Ronald D. Aucutt (McGuire Woods LLP) recently released a publication entitled, Estate Tax Changes Past, Present and Future (August 2013). 

This publication serves as an outline of the history of the modern federal estate tax as well as the most current developments.

August 29, 2013 in Articles, Estate Tax | Permalink | Comments (0) | TrackBack (0)

The 9th annual Jerry A. Kasner Estate Planning Symposium

KasnerThe 2013 Jerry A. Kasner Estate Planning Symposium is scheduled for Friday, September 29, 2013 at the Hyatt Regency Santa Clara (Santa Clara, CA).

There is also a 3 ½ hour “Fundamentals” course at SCU the preceding afternoon.

Sessions will be of interest to attorneys, accountants, professional fiduciaries, life insurance professionals, and related specialists.

 Speakers include:

• Robert E. Temmerman, Esq.
• Steve R. Akers, Esq.
• Michael J. Jones, CPA
• M. Read Moore, Esq.
• Prof. Gerry W. Beyer

More information is available at: http://law.scu.edu/kasner/.

August 29, 2013 in Conferences & CLE | Permalink | Comments (0) | TrackBack (0)

Increase of States with Laws Challenging Deathbed Marriages

Rings Recently, several states have enacted statutes to allow heirs the ability to challenge a deathbed marriage. Despite some states developing a process to contest a deathbed marriage, many of the new laws still have some serious problems.


In 2008, Florida published a study on Florida law on the laws regarding challenges within probate proceeding to the validity of marriages after a spouse’s death. The surviving spouse will receive many benefits including rights to the homestead, family allowance and others.There was no law available to challenge the validity of deathbed marriages and case law claiming that they could not be challenged.


Because of the report, in 2010 Florida passed legislation granting people the right to challenge rights granted to the surviving spouse. The statute of limitations is four years after the decedent's death. However, there are still loopholes in the statute. The statute allows a surviving spouse who fraudulently entered into the marriage is not entitled to, among other things, “any rights or benefits under a will, trust, or power of appointment, unless the surviving spouse is provided for by name, whether or not designated as the spouse, in the will, trust, or power of appointment.”

See John T. Brooks and Jena L. Levin, "I Do - And Yes, He Does, Too", Wealth Management, Aug. 27, 2013.

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

August 29, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Article over Trustee's Discretion

HwtangHang Wu Tang (Singapore Management University School of Law) has recently published an article entitled, The Court's Supervisory Power Over the Exercise of Trustee's Discretion: A Contribution From Singapore (2013). Provided below is the introduction to the article:

This article analyses the latest Singapore Court of Appeal’s decision in Foo v Foo which provides valuable guidance on how a trustee should act in the exercise of his or her discretion in relation to a power of sale.

August 29, 2013 in Articles, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)