Wills, Trusts & Estates Prof Blog

Book on Texas Estate Planning Statutes with Commentary: 2019-2021 Edition

Gerry W. Beyer recently published a book entitled, Texas Estate Planning Statutes with Commentary: 2019-2021 Edition, (2019). Provided below is a summary of the book.

Texas Estate Planning Statutes with Commentary: 2019-2021 Edition is a compilation of Texas statutes that are significant to law school and paralegal courses related to estate planning, such as wills and estates, trusts, estate administration, probate, elder law, and guardianship. Changes made by the 2019 Texas Legislature are printed in red-lined format to make the revisions easy for the reader to locate. Many sections include carefully written commentary entitled Statutes in Context. These annotations provide background information, explanations, examples, and citations to key cases, which will assist the reader in identifying the significance of the statutes and how they operate.

Book on Estate Planning and Asset Protection in Florida

Barry A. Nelson recently published a Book entitled, Estate Planning and Asset Protection in Florida (1st ed., 2019). Provided below is a summary of the book.

Estate Planning and Asset Protection in Florida is designed to help clients and their lawyers protect clients’ assets before litigation happens.

While the necessity of estate planning is understood by most clients, many fail to grasp the importance of protecting their assets as well. Barry A. Nelson, an industry-respected, board-certified attorney with decades of experience counselling high-net-worth clients reveals the serious implications of ignoring the potential liabilities that can threaten a client's assets.

Barry Nelson was among the first to advocate for asset protection. He perceived how estate planning anticipates only the very end of a spectrum of dangers that can adversely affect a client’s estate long before the will is read. The state of Florida, long considered a debtor’s haven, has fraudulent conveyance laws that prevent transfer of assets after litigation happens. Once an accident occurs or exposure to litigation is apparent, asset protection is significantly limited.

This work, years in the making, is like no other work on the market in combining estate planning and asset protection as a strategy. It describes how to integrate estate planning and asset protection for Florida residents to minimize Federal estate taxes and maximize protection of assets and explains what options remain even in the event of a claim such as divorce, claims for alimony, co-signings, or any number of lawsuits. While no one plan fits all, it expertly teaches clients and lawyers how to recognize their best options in a complex web of legal and tax relationships so the most informed decisions can be taken. Comprehensive, yet easy-to -use, it

• • explains all the types of assets and asset protection techniques available, among them: (i) homestead for asset protection, property tax, and limits on dispositions during life and upon death, (ii) annuities; (iii) life insurance, (iv) retirement plan accounts and 529 accounts, (v) spousal transfers including inter vivos QTIP trusts and Spousal Limited Access Trusts ("SLATs"), (vi) domestic and foreign asset protection trusts, (vii) third party created trusts, (viii) use of partnerships and LLCs, and (ix) wage owner accounts.
  • This book also outlines the requirements to benefit from these techniques and identifies from chapter to chapter the greatest traps for clients and their professional advisors, that could, for example, lead to a loss of homestead status, or permit creditors to gain access to earnings, life insurance proceeds, annuities, proceeds from inherited IRAs, pensions, profit sharing plans, etc.;
  • it offers over 250 pages of appendices containing supporting, illustrative sample documents, exhibits, key selections from Florida statutes, the Florida Constitution, white papers, memoranda and affidavits;
  • it discusses over 500 cases;
  • in addressing the use of limited liability partnerships and LLCs it explains why creating trusts and LLCs in a state other than Florida (such as but not limited to Nevada, South Dakota, Delaware and Alaska) may provide greater asset protection than Florida;
  • it considers a range of situations or scenarios and the challenges faced by: those who, for example, become instantly wealthy such as lottery winners, or professional athletes, celebrities or those who receive significant bonuses; it also, addresses the challenges of same-sex partners, the elderly who are vulnerable to financial exploitation, or children for whom a parent has had multiple spouses.

For those undergoing divorce, the book summarizes the laws regarding division of marital assets upon dissolution of the marriage and

• • discusses the ability of a spouse holding an alimony judgment to access third-party-created trusts;
  • it considers the protections of creating trusts in another state or country, and
  • provides the essential information clients need to minimize estate, gift and GST taxes, and
  • it familiarizes clients and advisors with the consequences of recent legislation, such as the Tax Cuts and Jobs Act (the "2017 Tax Act") which became effective January 1, 2018, and which significantly increased the Federal estate, gift, and generation skipping transfer ("GST") tax exemptions.

and much, much more.

Book on The Oxford Handbook of Fiduciary Law

Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff recently edited a book entitled, The Oxford Handbook of Fiduciary Law, (1st ed. 2019). Provided below is a summary of the book.

• Examines how fiduciary principles apply in eighteen different fields of law, including agency law, trust law, corporate law, pension law, bankruptcy law, family law, employment law, legal representation, health care, and international law
• Provides clear guidance on essential concepts and principles of fiduciary law, including the defining characteristics of fiduciary relationships, the duty of loyalty, the duty of care, mandatory and default rules, and fiduciary remedies
• Offers new historical, comparative, and interdisciplinary perspectives on fiduciary law
• Includes original essays from leading fiduciary law scholars exploring perennial challenges and future directions for the field
• No book currently available provides an overview of fiduciary law that is as rich or comprehensive as this volume

For more information about the material within the book, see here.

Special thanks to Garrett A. Heckman (Palm Springs, California Attorney) for bringing this article to my attention.

Article on Dr. Jekyll & Mr. Holmes: A Tale of Two Testaments

Stephen R. Alton recently published an Article entitled, Dr. Jekyll & Mr. Holmes: A Tale of Two Testaments, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This article takes the form of an epistolary exchange across the centuries, comparing and contrasting two noted wills in Victorian literature. The first of these testaments is the final will of Dr. Henry Jekyll, in Robert Louis Stevenson’s The Strange Case of Dr. Jekyll & Mr. Hyde; this will bequeaths the doctor’s estate to his friend and attorney, Gabriel John Utterson. The second testament is the putative will of Jonas Oldacre, in Arthur Conan Doyle’s The Adventure of the Norwood Builder; this will bequeaths Oldacre’s estate to the young solicitor who drafted the will, John Hector McFarlane. Taken together, these two testaments raise the issues of the testator’s capacity and intent to make the will, undue influence and bequests to attorneys (notably to the drafting attorney), due execution of the will, and the effect of the beneficiary’s possible murder of the testator. A comparison of these two fictional Victorian-era wills remains relevant today because the legal issues that these two testaments raised in 19th century England are still very much present in 21st century America.

Putting Fido in the Will Not Just for Super-Rich

It is becoming more commonplace for people to consider their pets as part of their family, and as such more people are also including their dog, cat, or other furry loved on in their estate plans. And it is not just the wealthy, though those are the ones that garner the most attention and media. 

“Setting up trusts for pets, or putting their care in the will, is becoming more popular as people become more aware that it is possible,” says Jason Smolen, an estate attorney at SmolenPlevy in Vienna, Virginia. There are a few states that have enacted laws, such as Virginia and Maryland, that dictate how pet trusts are to be set up. With such a trust, the owner can outline how he or she would like the pet taken care of, how often it should be groomed, how the pet trust money should be spent, and any other special needs the pet might have, Smolen said.

Pet trusts can be set up for the lifespan of the animal, or in the case of longer-living pets such as parrots, some states cap them at 21 years. Owners should meet with the designated caretaker and trustees, and update their will whenever they unfortunately lose a pet or possibly gain one. Without a will or trust, pets in most states are treated like property, Smolen explained.

For more information, see here.

See Karen DeMasters, Putting Fido in the Will Not Just for Super-Rich, Financial Advisor, March 14, 2019.

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

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

Book on Estate Planning for the Muslim Client

Yaser Ali and Ahmed Shaikh recently published a book entitled, Estate Planning for the Muslim Client, (1st ed. 2019). Provided below is a summary of the book.

Islamic law provides a non-discretionary system of rules that governs the distribution of a Muslim's estate. Designing an estate plan based upon these rules presents unique challenges and opportunities. As the demand for faith-based planning increases, there is a growing need for culturally competent advisors who understand how these complex rules interplay with state and federal law. This first-of-its-kind practice guide serves as an authoritative resource for practitioners on how to ethically and effectively draft and administer estate plans for Muslim clients seeking to comply with their faith.

Planning a client's estate can involve more than just the transfer of wealth from one generation to the next. To draft a customized plan that achieves a client's unique goals, an estate-planning practitioner must understand the client's values and convictions and, in many cases, his or her religious beliefs. For many clients, passing on these beliefs and traditions is just as important as, if not more important than, the distribution of assets.

Estate Planning for the Muslim Client provides insights, information, and practical planning solutions for clients who wish to adhere to a set of classical religious obligations while recognizing the practicalities of daily life in America. The authors highlight various planning opportunities and identify the most common issues that arise when planning for a Muslim client. Topics include:

• • Meeting the Muslim client and understanding the pillars of their faith
  • Ethical, legal, and public policy issues
  • Estate planning during life
  • Planning for incapacity and death
  • Disposition of property at death
  • Drafting estate planning documents, with sample forms
  • Planning for individuals and assets abroad, and more

McGovern & Hirsch California Probate Code Annotated, 2019 ed. Released

McGovern & Hirsch California Probate Code Annotated provides the complete text of the California Probate Code, related state and federal statutes, and rules of court regarding estate planning and probate.

This volume contains:

• Authoritative commentary, annotations, and analysis of leading cases
• Law Revision Commission editorial notes that provide additional guidance in the construction and application of particular sections
• References to Witkin's Summary of California Law, 10th which direct you toward further research
• A table of Judicial Council forms to help you identify forms to be used in conjunction with the statutes and rules
• A table of cases illustrating the cases discussed in the author's commentary
• A table of affected sections indicating recent modifications
• Underlining to indicate additions or changes in statutes
• Asterisks to indicate deletions

Book on Handbook of Practical Planning for Artists, Art Collectors, and Their Advisors, Second Edition

Ramsay H. Slugg recently published a Book entitled, Handbook of Practical Planning for Artists, Art Collectors, and Their Advisors, (2d ed. 2019). Provided below is a summary of the book.

Art is an asset of passion, as author Ramsay H. Slugg states, yet it also has unique and important financial characteristics. This makes art possibly the most difficult asset to incorporate into an overall estate and financial plan. Handbook of Practical Planning for Artists, Art Collectors and Their Advisors addresses two essential elements of art ownership: planning for the ultimate disposition of the art, including how to address the wealth represented by the art into any estate and financial planning, and also the practical considerations for collectors as they actively collect and plan for the art’s eventual disposition.

After a brief discussion of the art market generally, the book introduces and explains a client-focused process I use when advising art collectors. This process includes explaining both the income, estate and gift tax consequences of various options, as well as the important and often emotional non-tax considerations of collecting and disposing of art. The book also discusses the role and importance of other advisors who are involved in these decisions, including art advisors, risk management professionals and appraisers. To better illustrate the material, the book features enlightening case studies.

Book on Effective Use of IRA Assets in Estate Planning

Seymour Goldberg published a Book entitled Effective Use of IRA Assets in Estate Planning (includes IRS Compliance Issues and Asset Protection Planning) (2018). Provided below is an excerpt from the book. 

Advantages of the trust as a beneficiary:

1. If the IRA death benefits are payable directly to a designated beneficiary, then the death benefits may be accelerated at any time by the designated beneficiary.

2. If the IRA death benefits are significant and payable to the trust, then a knowledgeable trustee may take advantage of the extended payout period if the IRS trust documentation requirements are timely satisfied with the IRA institution. The IRS trust documentation requirements must be satisfied by October 31st of the calendar year following the IRA owner’s year of death.

3. A mature trustee will control the investments while the assets are in the IRA.

4. If IRA death benefits are payable to a trust they may be protected from the creditors of the designated beneficiary under state law or in a divorce proceeding.

5. If IRA death benefits are payable to a spendthrift trust they generally should be protected if the designated beneficiary declares bankruptcy provided that the spendthrift trust is recognized under state law. Most jurisdictions recognize spendthrift trusts.

6. If IRA death benefits are payable to a trust for the benefit of a minor, it avoids the jurisdiction of the probate court or a similar court that has jurisdiction over the minor’s assets.

7. If IRA death benefits are payable directly to minor, then the probate court or a similar court is involved. The probate court or a similar court may not go along with an extended payout period of the IRA distributions.

8. A client should consider making provisions in his/her will and/or other legal documents that exonerate nonprobate assets such an IRA from the payment of the IRA’s share of the estate tax liability provided that there are sufficient other assets and that this provision is consistent with the client’s estate plan.

Exonerating the IRA and other retirement assets from any estate tax liability will permit more tax deferred growth of the IRA and other retirement assets and the tax exempt growth of Roth IRAs. However, this exoneration approach is at the expense of other beneficiaries of the estate.

9. A trust for adult child may be necessary if the adult child cannot handle money or would not otherwise reimburse the executor of the estate for the estate tax liability attributable to the IRA on a voluntary basis.

10. The life expectancy of child or grandchild will generally result in a greater deferral of income then if the surviving spouse was the designated beneficiary of the IRA.

11. The children or grandchildren benefit from growth of IRA instead of the surviving spouse. This should save a considerable amount of estate taxes on the subsequent death of the spouse.

12. The trust may be used as an exemption trust for estate tax purposes.

13. As a result of the Tax Cuts and Jobs Act effective January 1, 2018, significant income tax savings may be available if IRA assets are payable to trusts for the benefit of children or grandchildren.

14. As a result of the Tax Cuts and Jobs Act effective January 1, 2018 significant estate tax savings may be available if the IRA assets are payable to trusts for the benefit of children or grandchildren.

Book on The Heirs: A Novel

Susan Rieger recently published a book entitled The Heirs: A Novel (2018). Provided below is a synopsis of the book.

Six months after Rupert Falkes dies, leaving a grieving widow and five adult sons, an unknown woman sues his estate, claiming she had two sons by him. The Falkes brothers are pitched into turmoil, at once missing their father and feeling betrayed by him. In disconcerting contrast, their mother, Eleanor, is cool and calm, showing preternatural composure.

Eleanor and Rupert had made an admirable life together -- Eleanor with her sly wit and generosity, Rupert with his ambition and English charm -- and they were proud of their handsome, talented sons: Harry, a brash law professor; Will, a savvy Hollywood agent; Sam, an astute doctor and scientific researcher; Jack, a jazz trumpet prodigy; Tom, a public-spirited federal prosecutor. The brothers see their identity and success as inextricably tied to family loyalty – a loyalty they always believed their father shared. Struggling to reclaim their identity, the brothers find Eleanor’s sympathy toward the woman and her sons confounding. Widowhood has let her cast off the rigid propriety of her stifling upbringing, and the brothers begin to question whether they knew either of their parents at all.

A riveting portrait of a family, told with compassion, insight, and wit, The Heirs wrestles with the tangled nature of inheritance and legacy for one unforgettable, patrician New York family. Moving seamlessly through a constellation of rich, arresting voices, The Heirs is a tale out Edith Wharton for the 21st century.

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