Wills, Trusts & Estates Prof Blog

Article on La protección jurídica de las personas mayores: un reto para el siglo XXI (The Legal Protection of Elder People: A Challenge for the 21st Century)

M.C. García Garnica published an Article entitled, La protección jurídica de las personas mayores: un reto para el siglo XXI (The Legal Protection of Elder People: A Challenge for the 21st Century), Elder Law eJournal (2018). Provided below is an abstract of the Article.

The 21st century is facing a phenomenon of population aging unprecedented in the history of humanity. This is a positive phenomenon in a first approach. However, various international organizations warn us of the growing vulnerability of elder people, as a collective particularly exposed to situations of discrimination, social exclusion, poverty and abuse both personally and economically. Therefore, it is a challenge for legal systems to provide an adequate legal response to the needs of the elderly, from the perspective of safeguarding their autonomy, their dignity and their fundamental rights. In view of this, the present work aims to reflect on this reality, claiming a necessary legislative intervention in the matter.

CLE on Drafting IRA Trusts

The National Business Institute is holding a webinar entitled, Drafting IRA Trusts, on Thursday, May 9, 2019, at 9:00 AM to 4:00 PM Central. Provided below is a description of the event.

Program Description

Provide Your Clients with a Thorough Understanding of IRA Trusts

Be prepared for specific challenges associated with IRA trusts by understanding their unique characteristics. Our essential primer will provide you with a comprehensive overview of these popular trusts, including drafting tactics, advantages of an IRA trust and critical sample forms needed to complete the process. Register today!

• • Determine the pros and cons of establishing an IRA over other trusts.
  • Gain a better understanding of IRA minimum distribution rules, such as individuals as beneficiaries and trusts as beneficiaries.
  • Learn different tax issues associated with an IRA trust, including income and estate tax.

This is a rebroadcast of the original webcast delivered by Karen L. Brady, Justin H. Brown and Thomas J. Murphy on October 18, 2018. Faculty will be available to answer your questions after the program.

Who Should Attend

This legal program is designed for attorneys looking to increase their knowledge of IRA trusts. This course may also benefit accountants and CPAs, estate planners, and trust officers.

Course Content

• • Overview of IRA Trusts
  • IRA Required Minimum Distribution Rules
  • Retirement Account Rollover Rules and Mistakes
  • Drafting an IRA Trust
  • Tax Issues
  • Sample Forms
  • Using Self-Directed IRAs to Create LLCs for Non-Traditional Investments
  • Ethics in Estate Planning Practice
  • Distribution and Termination of IRA Trusts in Estate Administration

Facebook Will be Overrun by Dead People Within 50 years, Researchers Say

According to new research from the Oxford Internet Institute, by 2070 the number of users on that are dead could outnumber the amount of living people using Facebook. The Institute predicts that at least 1.4 billion Facebook users will die before 2100, with the dead outnumbering the living in about 50 years. This could have serious implications for the manner in which the social media network stores our digital profiles.

The lead author of the study, Carl Ohman, said that, "These statistics give rise to new and difficult questions surrounding who has the right to this data, how should it be managed in the best interests of the families and friends of the deceased and its use by future historians to understand the past." Though Facebook is a for-profit firm, co-author David Watson says that there are also major public policy concerns. "Never before in history has such a vast archive of human behavior and culture been assembled in one place. Controlling this archive will, in a sense, be to control our history...It is also important to make sure that future generations can use our digital heritage to understand their history."

Many parts of the world is seeing a decline in new and continuing users of Facebook, either because of privacy concerns with the digital data as a whole or are turning to other social media applications. The study's predictions are based on data from the United Nations, which provided researchers with the expected number of deaths and total populations of each country in the world distributed by age, along with Facebook data from the company's Audience Insights feature.

See Christopher Carbone, Facebook Will be Overrun by Dead People Within 50 years, Researchers Say, Fox News, April 29, 2019.

Beating Bernie’s Bill in 2019

In January of this year, Senator Bernie Sanders introduced S309, otherwise known as the “For the 99.8 Percent Act” in the Senate. Because many of the propositions within the bill deal with changes in the tax code, any person involved in estate planning or wealth preservation should meet with their financial advisor to determine the appropriate steps. If passed, the Act will become effective January 1, 2020. This most likely not occur now with the current political set-up, but if the Democrats in 2020 take control of the presidency, the House, and the Senate, there is a material risk that some or all of the proposals will be enacted.

The Act rolls backs many of the changes that occurred in the Tax Cuts and Jobs Act. These alterations include lowering the estate tax exemptions to $3.5 million; reduces gift tax exemptions to $1 million; raises the highest estate tax rate to 77%; includes in the gross estate of a decedent all unrealized appreciation in their “grantor” trusts; imposes material restrictions on the use of grantor retained annuity trust (GRATs); limits the duration of dynasty trusts to 50 years, even in states that allow them in perpetuity; eliminates almost all valuation discounts on transfers of privately held entities; and virtually eliminates most Crummey powers from trusts.

As these changes run the gambit for many prudent clients, they should speak with their advisors to determine if any strategies they are using will have to be altered.

See William D. Lipkind, Beating Bernie’s Bill in 2019, WinsonNesler.com, April 25, 2019.

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

Article on Is the Taxpayer Bill of Rights Enforceable?

Leandra Lederman recently published an Article entitled, Is the Taxpayer Bill of Rights Enforceable?, Tax Law: Tax Law & Policy eJournal (2019). Provided below is an abstract of the Article.

In 2016, Congress enacted a statutory Taxpayer Bill of Rights containing a list of ten rights but lacking an explicit remedy or enforcement mechanism. Are the rights listed therefore merely aspirational, or are some or all of them enforceable? It is worth noting that the statute does not say that these rights are unenforceable. Recently, taxpayers such as Facebook have begun to demand remedies for alleged violations of the rights listed in the statute, such as “the right to appeal a decision of the Internal Revenue Service in an independent forum.” This Essay argues that not only does the statutory text not provide a private right of action, U.S. Supreme Court case law does not permit such a right to be inferred. The Essay further argues that the history of the statute, which was largely the initiative of the National Taxpayer Advocate, supports the conclusion that there is no private right of action to enforce the statute. Rather, as the statute states, the Commissioner of the Internal Revenue Service is charged with ensuring that the listed taxpayer rights are protected.

6 Estate Planning Tips For Blended Families

No matter how every parent that remarries hopes things will go well, not every blended family has the same harmony as the Brady Bunch. A step-parent may not have the same affection for their step kids as much as they have for their biological children, especially if there are no adoptions. Years after one spouse dies, the children of that spouse may worry about their stepmother or stepfather including them in their estate plan if the majority of their parent's estate went to their spouse.

Here are 6 tips for blended families when it comes to estate planning.

• A simple will probably will not cut it.
  • Our society is seeing less nuclear families with simple family trees, so the simple wills of yesterday will not be sufficient in these circumstances.
• Consider a trust that leaves assets to your spouse for her lifetime, with the balance passing to your children on her death.
  • This way, your spouse can be taken care the rest of his or her days, but your assets will ultimately pass to your children.
• Choose a knowledgeable and sophisticated trustee.
  • Just in case there is tensions between your spouse and your children years down the road after your death, it is important to have an experienced trustee to invest properly and act as referee.
• Plan for the possibility that your surviving spouse will remarry.
  • It could happen. A trust can ensure that the assets are protected.
• Consider leaving some assets to your biological children on your death.
  • This can ease tensions and make it so that your children are not waiting around and hoping for their stepparent to pass away.
• Decide who will make health care decisions.
  • Most states only allow you to name one person to make health care decisions. This can cause issues between a stepparent and an adult child as it is not uncommon for one to cut off the other from seeing an incapacitated parent. This should be an in-depth conversation with your family.

See Christine Fletcher, 6 Estate Planning Tips For Blended Families, Forbes, April 26, 2019.

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

Your Top 10 Objects Your Kids Don’t Want

There are several possessions that you may hold in particular high regard, but your children might not want to inherit. Here is a list of the top 10 objects that children categorically do not want to receive from their parents.

• Books
  
  • Unless your children grow up to be professors, or there books are particularly rare or expensive, they will not treasure your books the way that you would want.
• Paper Ephemera
  • Family snapshots, old greeting cards and postcards may have emotional value to some, but generally unless they consist of a celebrity it will not have much monetary value. To keep the emotional appeal, it would be best to transfer these photos to a flash drive for your children.
• Steamer Trunks, Sewing Machines and Film Projectors
  • Though these accessories look nice on Pinterest and other social media sites, they are so abundant now due to popularity that they are worthless unless they are of a particular luxury brand.
• Porcelain Figurine Collections and Bradford Exchange “Cabinet” Plates
  • Better off just to donate these to a retirement home, as they hold no appeal for anyone concerned with aesthetic appeal or market value.
• Silver-Plated Objects
  • The exception may be silver-plated items from Cristofle, Tiffany, Cartier, Asprey, and other manufacturers of note.
• Heavy, Dark, Antique Furniture
  • Second-hand and consignment stores may be able to fetch a price for some of these household wares, but it will be a quarter of the purchase price. Instead, donate them and take the charitable deduction.
• Persian Rugs
  • The years have not been friendly to these rugs and they now seem threadbare and too busy for the modern home. Just like the antique furniture, best to give them away and take a non-cash charitable deduction.
• Linens
  • Several boxes of hand-embroidered pillowcases, guest towels, napkins, and table linens will mostly likely not be enjoyed by your daughter. But a seamstress or costume designer might be able to put them to good use.
• Sterling Silver Flatware and Crystal Wine Services
  • Formal entertaining is simply not a priority these days anymore for many people. Sites like Replacements.com offer matching services for those who do enjoy silver flatware, and typically many sellers can get good prices piece by piece.
• Fine Porcelain Dinnerware
  • When was the last time you witnessed your adult child drinking tea with a delicate cup and saucer? They are not going to use them in the way that you imagine in your head that they will, so again, try a website to find like-minded individuals that will. 

See Your Top 10 Objects Your Kids Don’t Want, Forbes, April 2019.

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

Ashes of California Veteran Couple's Baby Reportedly Stolen

A couple in California had their home broken in this month, and among other items stolen from their house they discovered that something irreplaceable was taken. The cremains of their baby daughter that had been born premature was snatched away.

"We don’t care about any of that,” Kelly Smith said. “We just want our daughter back." Both mother and father have served overseas in the military, and once they returned from a trip they realized what had happened. They are both desperate to get the cremains back.

See Elizabeth Zwirz, Ashes of California Veteran Couple's Baby Reportedly Stolen, Fox News, April 25, 2019.

CLE on For Better or for Worse: Spousal Rights in Retirement Plans

The American Law Institute is holding a webcast entitled, For Better or for Worse: Spousal Rights in Retirement Plans, on May 14, 2019 from 12:00 to 1:30 PM Eastern. Provided below is a description of the event.

Why You Should Attend
While the available tax incentives motivate more and more people to hold substantial wealth in qualified plans and individual retirement accounts, many plan participants don’t understand how the distributions work or how to pass that tax benefit on to their beneficiaries. Who can be a designated beneficiary? How do the distribution options change for beneficiaries that are spouses vs. non-spouses? What happens when the account owner is divorced or remarried?

In this 90 minute webcast, we’ll explore how spousal rights to retirement plans can vary from state to state and what your clients can to do ensure that their assets go to their intended party.

What You Will Learn
The presenters, all highly experienced estate planning practitioners and Fellows of the American College of Trust and Estate Counsel (ACTEC), will review:

• • The impact of Windsor and Obergefell on retirement plan benefits in same-sex unions
  • Spousal rights in retirement plans subject to ERISA
  • How spousal rights can vary considerably among the common law and community property states
  • ERISA preemption of state laws
  • Case studies illustrating spousal rights in both common law and community property states
  • Best practices in planning to maximize chances that clients’ intended outcome will occur

Article on Winning Starts at the Top: Estate Planning Considerations for the Modern Day Sports Team Owner

Duncan Ternus recently published an Article entitled, Winning Starts at the Top: Estate Planning Considerations for the Modern Day Sports Team Owner, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Professional sports team owners need to carefully plan their estates in order to win on and off the field. These individuals are arguably the most important figures in a professional sports team because their actions affect everyone associated with the team, from players to fans. Team owners represent some of the wealthiest people in America and have large estates that often include other business ventures besides their sports teams. When team owners take inadequate estate planning steps, their estates are often forced to sell their teams in order to pay estate taxes. This in turn can lead to team instability or, worst case scenario from a fan’s perspective, a forced relocation of the team.

This comment examines some of the ways today’s professional sports team owners can plan their estates in order to not only continue their personal success but their team’s success as well. Federal estate taxes are the largest hurdle for team owners because the tax affects only the wealthiest of estates, and planning one’s estate to avoid these estate taxes is vital for a team owners’ success. The future of the federal estate tax remains to be seen under the Trump administration, which could lead to substantial gain for team owners should the tax be repealed altogether. Team owners also need to consider state estate taxes for the states in which they are domiciled.

Over the past few years, notable professional sports team owners’ estates have experienced varying degrees of success. This comment will examine in detail the estates of Tom Benson and the New Orleans Saints and Pelicans, Ralph Wilson and the Buffalo Bills, William Davidson and the Detroit Pistons, and Jerry Buss and the Los Angeles Lakers. This comment also provides many strategies for sports team owners to limit their estate taxes, such as use of gift giving, charitable donations, family limited partnerships, and irrevocable life insurance trusts. A family business plan can also ensure a stable transition of ownership when the owner dies and passes the team to the family.