Wills, Trusts & Estates Prof Blog

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

Thursday, December 27, 2018

CLE on Planning Techniques for Larges Estates

CLEThe American Law Institute is holding a conference entitled, Planning Techniques for Larges Estates, on Wednesday - ‎Friday, ‎April ‎3 - ‎5, 2019 at the Hilton Resort & Villas in Scottsdale, Arizona. Provided below is a description of the event.

Why You Should Attend
A successful planning strategy for high-net-worth clients involves advanced estate planning techniques that minimizes taxes, protects assets and preserves wealth. Don’t miss out on this unique opportunity to keep up to date on the most innovative wealth transfer strategies from a faculty of leading large estate planners and tax experts!

Here’s what past course attendees have said:

"Very good speakers and content. The lunches provided easy networking opportunities."

"Excellent and substantive as usual, thank you for a great program!"

"Very well presented and the written materials will be useful."

"Wonderful program. Learned a lot. Will take it again in the future."

What You Will Learn
Attend this highly-rated course and get the latest sophisticated planning strategies specifically for large estates. Learn, network, and strategize with your peers and a highly experienced faculty of trust and estate practitioners from across the country. Each panel provides real examples and practical applications that will help you develop a plan for your clients to efficiently transfer wealth to their heirs and favorite charities, protect their family and businesses, grow assets, and minimize taxes.

This year’s estate planning and strategic wealth transfer topics include:

Sales to IDITs, GRATs, etc.
Life Insurance as a integral part of a well thought-out estate plan
Best way to pass assets using GST
Incorporating trusts into retirement plans
Advantages of charitable giving
Using entitites in estate planning

December 27, 2018 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Income Tax, Trusts, Wills | Permalink | Comments (0)

Navy SEAL's Ashes Returned After Found in Dumpster

Navy sealsConstruction worker Shane Hanna found something very peculiar in a dumpster: an urn containing human remains, marked with the logo of the Navy SEALS. "I realized this was an urn, so there’s no way I was leaving it in the dumpster," Hanna said. "Especially because it had a Navy SEAL insignia on it." Unsure what to do, he took the urn home to Lancaster, Pennsylvania and contacted the local branch of the Veterans of Foreign Wars (VFW), Post 3376.

The postmaster, Dwayne Mackenzie, was able to determine that the remains belonged to veteran Ronald Lee Pruitt, and tracked down the man's sister, Barbara Dixon, who lived in Delaware, through the funeral home that cremated Pruitt. Dixon made the three hour drive to retrieve the urn.

"It is a Christmas miracle. It's a miracle that all these people went above and beyond to find me," Dixon said. She received the remains during a ceremony at the VFW honoring Pruitt's service. The Navy veteran died in 1996, and his remains had initially gone to another sister, who died a few years later.

See Amy Lieu, Navy SEAL's Ashes Returned After Found in Dumpster; Family Calls it 'Christmas Miracle': Report, Fox News, December 27, 2018.

December 27, 2018 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

Article on The 2017 Tax Law: A Boost to Growth or a Missed Opportunity?

TcjaJason Furman recently published an Article entitled, The 2017 Tax Law: A Boost to Growth or a Missed Opportunity?, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article. 

This paper summarizes and extends the analysis in Barro and Furman (2018) of the 2017 tax law, which dramatically reduced the corporate income tax rate. Barro and Furman find that the tax law as written would increase the annual growth rate of gross domestic product over the next decade by 0.02 to 0.04 percentage points. Extending these results, the effect of the tax law on national income would likely be even smaller, or perhaps negative, due to increased payments to foreigners needed to finance the larger budget deficit and increased investment and due to increased capital depreciation. It concludes with a proposal for genuine tax reform by expanding and making expensing permanent, disallowing interest deductions and raising rates that would increase economic growth by substantially more than making the current system permanent. Such reform also would make the tax code more stable, simpler and more efficient.

December 27, 2018 in Articles, Current Affairs, Estate Planning - Generally | Permalink | Comments (0)

Cell Tower Records Thwart Will Contest

Cell_Phone_TowerAfter the decedent died and a will was offered for probate, a family member came forward with an alleged newer will which left her a large portion of the decedent's estate.

The family member swore under oath that she and the decedent went two times to the attorney's office to work on the new will.

However, cell tower location data proved that neither the decedent nor the family member had ever visited the attorney's office.

See David Gallant, Digital Breadcrumbs: Do You Know Where Your Phone Has Been?, San Antonio Lawyer, Nov./Dec. 2018, at 18, 22.

December 27, 2018 in Technology, Wills | Permalink | Comments (1)

Tuesday, December 25, 2018

Article on Missing Persons – Current Tendencies

MissingLinda Schoeman-Malan recently published an Article entitled, Missing Persons – Current Tendencies, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract to the Article.

This contribution provides an overview of the historical background to presumptions related to both “life and death” of absentees. The position in South Africa is compared with statutory developments in England where legislation was adopted in 2013 incorporating clear procedures for the regulation of a situation where persons go missing. The possible problems which interested parties might face when a loved-one goes missing are discussed with reference to South African and English case law. In conclusion, the questions whether the time has come for South Africa to consider statutory intervention in this regard, and whether such intervention will contribute to legal certainty, are considered.

December 25, 2018 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

The 10 Cheapest States for Your Aging Parents in 2018

C Oklaaring.com examined 11 different socio-economic factors critical to the overall expense of caring for an aging parent. This included their internal data on senior care costs, Genworth's 2017 report on the average cost of senior care in each state, a cost of living index, and other data. “It all comes down to finding that ideal balance between a low cost of living and the accessibility of services,” says New York City-based eldercare advisor Joanna Leefer.

Here is the 10 cheapest states, starting at #10 and counting down to the most affordable state.

  • Arizona
  • Ohio
  • Texas
  • Tennessee
  • South Carolina
  • Idaho
  • Wisconsin
  • Missouri
  • Mississippi
  • Oklahoma

See Nick DiUlio, The 10 Cheapest States for Your Aging Parents in 2018, Caring.com, December 14, 2018.

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

December 25, 2018 in Current Affairs, Disability Planning - Property Management, Estate Planning - Generally, Travel | Permalink | Comments (0)

Greece Should not Have Applied Sharia Law in Will Contest

MuslimIn a recent case in the European Court of Human Rights, the court found that Greece should not have allowed the two sisters a deceased Muslim man apply Sharia law to contesting the validity of their brothers will.

In Molla Sali v Greece, a Grand Chamber judgment held that Greece had violated Article 14 of the European Convention on Human Rights, which prohibits religious discrimination, when the country applied Sharia law to the inheritance of a wife's estate. The husband had a will written up and notarized 5 years before his death, bequeathing his wife all of his property. However, his two sisters contested the will. They claimed that their brother was part of the Thrace Muslim community and that any question of inheritance should be governed by Sharia law instead of Greek Civil Code. Under Sharia law, there is no testacy - inheritance is simply provided by intestacy rules, and wills are only meant to compliment those rules. Under the intestacy guidelines, the sisters were entitled to three-quarters of their brother's estate because they were close relatives.

After several layers of appeals, the European Court found for the wife, stating that she had been discriminated against because of her husband's religion. Because the husband went to a notary and had a will drawn up and publicly notarized, he was subjecting himself to the Greek Civil Code, just like a non-Muslim Greek national. "The fact is that if her husband, the testator, had not been of Muslim faith, Ms Molla Sali would have inherited the whole estate."

See Howard Friedman, European Court: Greece Should not Have Applied Sharia Law in Will Contest, Religion Clause Blog Spot, December 21, 2018; see also Molla Sali v Greece.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

December 25, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, Religion, Travel, Wills | Permalink | Comments (0)

Monday, December 24, 2018

Article on The Short-form 'Best Interests Duty' - Mad, Bad and Dangerous to Know

DangerDavid Pollard recently published an Article entitled, The Short-form 'Best Interests Duty' - Mad, Bad and Dangerous to Know, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

Under English law, trustees, company directors and others occupy a “fiduciary” position towards the relevant trust, company or other principal. There is clearly a need for an explanation to be given to the relevant office holder of what this means – and for judges to describe the relevant duties when looking at claims of breach. How should the relevant board actually exercise a relevant power or discretion?

Much of the caselaw and commentary seeks to encapsulate the essence of the fiduciary duties in a simple phrase: that a trustee owes an overarching duty to “act in the best interests of the beneficiaries”. In the UK (where private sector pension schemes are established as express trusts), many pension lawyers play “best interests” bingo in spotting (and condemning) the use of this phrase. It even creeps into legislation (rather worryingly).

But, as this article will seek to demonstrate, this is a very misleading encapsulation of the nature of fiduciary duties. There is a risk that, understandably given its use by judges and sometimes in statutes, trustee boards and directors take the formulation literally. This could easily take them into error. Clearly it does not override the terms of the trust, nor can it be taken literally.
This article is split into two parts. Part 1 (“Background, Cowan v Scargill and MNRPF”) looks at:
• The nature of any “best interests duty;
• Why does the analysis of the supposed duty matter;
• Some examples of a best interests duty in official guidance
• Why the test appears in cases about who is a fiduciary (including looking at the decisions of Millett LJ in Mothew and Armitage v Nurse in this context);
• Why a literal duty is both dangerous and imprecise and unworkable.
• A discussion of the decisions of Megarry V-C in Cowan v Scargill, Nicholls V-C in Harries and Asplin J in Merchant Navy Ratings Pension Fund ;
• A look at two English cases rejecting a literal reading of an express contractual best interests duty (Fish v Dresdner) or an express regulatory duty: (IG Index v Ehrentreu).
Part 2 (“The problems and a suggested better formulation”) looks at:
• the problems with such a supposed best interest duty, if taken literally;
• looks at the recent caselaw that holds that there is no such duty - in particular the decision of Asplin J in 2015 in; and
• warns against the use of such a phrase by advisers (and in legislation);
• seeks to suggest a better formulation, based on exercise of powers for proper purposes and in the interests of the success of the trust/company; and
• compares the statutory duties on directors under s172, Companies Act 2006 and in particular notes the modified duty for trustee companies under s172(2); and
• (briefly) the Australian position (where Parliament has scattered statutory “best interest” duties with abandon).

This article does not consider the separate issues of how this impacts on ethical or social investment issues (see the recent Law Commission Reports) or how pension trustees should take account of the interests of the employer.

December 24, 2018 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

CLE on Estate Planning and Administration: The Complete Guide

CLEThe National Business Institute is holding a conference entitled, Estate Planning and Administration: The Complete Guide, on Wednesday, January 23, 2019 - Thursday, January 24, 2019, at the Hilton Garden Inn San Diego Mission Valley/Stadium in San Diego, California. Provided below is a description of the event.

Program Description
Find Out How Key Estate Planning Tools are Drafted and Implemented

Every client's estate is unique in its assets composition, family dynamics and future needs, but all are ruled by the same principles and are subject to the same tax and legal limitations. In this comprehensive legal guide, experienced attorney faculty will guide you through the process of estate planning and administration and show you how to select the best trust instruments and wield them skillfully to avoid mistakes at probate. They will also teach you how to properly administer the estate and tackle potential mistakes of improperly drafted documents, changed circumstances and newly arising conflicts. Become fully prepared to protect your client's legacies - register today!

Get an update on the current tax regime and other key regulations.
Get the case off on the right foot with a thorough and thoughtful client intake.
Compare key trust structures and their effect on the grantor and beneficiary tax future burdens.
Help clients plan for and fund long-term care.
Ensure confidentiality before and after the client's death.
Get useful checklists for key dates and tasks in estate administration.
Clarify what can be distributed through non-probate transfers and how to do it correctly.
Explore creditor issues in estate administration and get trouble-shooting tips from the pros.
Find out how much planning can still be done after the client's passing.
Discuss the duties and powers of fiduciaries, their limits and real-life application.
Get tips for closing the estate to prevent future disputes.

Who Should Attend
This basic-to-intermediate level seminar on estate planning and administration is designed for:
Accountants and CPAs
Tax Managers
Trust Officers
Certified Financial Planners
Investment Advisers

Course Content
Key Laws and Client Intake/Goal Setting
Planning for Long-Term Care and End-of-Life Decisions
Testamentary Documents - Drafting Do's and Don'ts
Common Trust Structures and When They're Used
Transfers During Life and Inter-Vivos Trusts
Tax Consequences of Trusts

Probate Process Overview
Marshalling Assets and Dealing with Creditors
Post-Mortem Tax Planning Options
Legal Ethics in Estate Practice
Trust Administration and Termination Basics
Closing the Estate

December 24, 2018 in Conferences & CLE, Current Events, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

How to Plan Finances to Raise a Special-Needs Child

SntMichael and Carole Maguire’s daughter was born in 1999 with a rare chromosomal condition, trisomy 12. There was a lack of families to lean on for support, for Michael did the only tangible thing he could - he financially planned for her future. "I couldn't fix her diagnosis," he said, but he could do this for her.

Planning for children with special needs is far more complicated than that of other children. For one, if a special needs child has too much money to their name, they risk losing on highly important government benefits. Parents of these types of children also need to have more life insurance to adequately provide for their loved ones if tragedy strikes. “You can quantify how much someone needs for retirement or college, but it’s difficult to quantify how much someone needs for disabilities,” said John Nadworny, the lead wealth adviser in the special needs planning group at Shepherd Financial Partners.

Michelle Smith, chief executive of Source Financial Advisers and a co-founder of the Ideal School of Manhattan, advocates that parents with special-needs children plan early and revise those plans often. Her 17-year-old son Dylan has Down syndrome, and she says that the expenses he needs are on par to "a year of college education for me every year for the rest of my life.”

Having a newborn baby is daunting enough, but learning that your child is special needs adds to the unknown exponentially. Mr. Nadworny said there are five areas to focus on when it comes to planning for a special needs child: financial factors, government benefits, legal factors, family and support factors, and emotional factors.

See Paul Sullivan, How to Plan Finances to Raise a Special-Needs Child, New York Times, December 21, 2018.

Special thanks to Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention.

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

December 24, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)