Wills, Trusts & Estates Prof Blog

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

Tuesday, January 21, 2020

Article on Can a Choice-of-Court Agreement Included in a Marriage Contract Meet the Requirements of Both EU Succession and Matrimonial Property Regulations?

MarriageIryna Dikovska recently published an Article entitled, Can a Choice-of-Court Agreement Included in a Marriage Contract Meet the Requirements of Both EU Succession and Matrimonial Property Regulations?, Wills, Trusts, & Estates Law e Journal (2019). Provided below is an abstract of the Article.

Due to the fact that matrimonial property and inheritance issues are closely intertwined, in some situations the determination of rules which should be applicable to particular relationships seems problematic. This fully applies to marriage contracts which cover both types of issues. The presence of a cross-border element in such contracts raises the question of the delineation of the legal regimes of the Matrimonial Property Regulation and the Succession Regulation applicable to matrimonial property and succession issues respectively. This paper analyses the rules which should be applicable to choice-of-court agreements for matters arising out of marriage contracts which cover both matrimonial property and inheritance issues and include a cross-border element. For this reason, the paper reveals the interaction between the regimes of the Matrimonial Property Regulation and the Succession Regulation, and the requirements of choice-of-court agreements under both regulations. Some of the requirements of these regulations of choice-of-court agreements coincide (eg formal requirements), while others differ. The main differences include: the precondition for the conclusion of a choice-of-court agreement under the Succession Regulation, which is not required under the Matrimonial Property Regulation; the courts which may be chosen; and the circle of matters which can be resolved by the courts on the basis of the choice-of-court agreement. It is concluded that a choice-of-court agreement, included in the marriage contract, can meet the requirements of both the Succession Regulation and the Matrimonial Property Regulation if: the dispositions upon the death of a spouse, included in the marriage contract, are an ‘agreement as to succession’ in the meaning of Article 3(1)(b) of the Succession Regulation; the marriage contract includes a choice-of-law agreement in favour of the law of the Member State whose nationality a deceased spouse possessed when the choice-of-law agreement was concluded; this choice of law agreement covers the succession of the deceased spouse ‘as a whole’; the choice-of-court agreement grants jurisdiction to the courts of the Member State whose nationality a deceased spouse possessed at the time of the conclusion of the choice-of-law agreement; it provides the jurisdiction of ‘the courts’ of a Member State (not ‘a court’).

January 21, 2020 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Travel | Permalink | Comments (0)

Monday, January 20, 2020

Article on Crummey Powers: Still a Powerful Estate Planning Tool

CrummeyRobert J. Adler recently published an Article entitled, Crummey Powers: Still a Powerful Estate Planning Tool, Probate & Property Magazine, Vol. 34 No. 1 (Jan/Feb 2020). Provided below is the introduction to the Article.

In the usual case, an unfunded irrevocable life insurance trust will rely on gifts from the trust grantor to provide funds necessary to pay future premiums. These gifts are subject to the gift tax. IRC § 2503(b) provides for a gift tax annual exclusion of up to $15,000 (as indexed through 2019) per donee per year for gifts of present interests. Gifts of a future interest do not qualify for the annual exclusion. Consequently, gratuitous transfers in trust of cash to pay life insurance premiums would ordinarily be future interest gifts for which no annually excludable amount is available.

January 20, 2020 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Saturday, January 18, 2020

Rich People Don’t Just Live Longer. They Also Get More Healthy Years.

SandtimerPaola Zaninotto, a professor of epidemiology and public health at University College London, was a lead author a recent study published in The Journals of Gerontology: Series A. The study showed that the wealthy live longer and also have eight to nine more healthy years after 50 than the poorest individuals in the United States and in England.

The study analyzed data two existing data sets containing more than 25,000 people over 50. Instead of income, the study defined wealth as the person's financial assets such as their home and possessions, minus their debts. For Americans, the average wealth was $29,000 for the poorest group, $180,000 for the middle group and $980,000 for the richest group, Dr. Zaninotto said.In both countries, wealthy women tended to live 33 disability-free years after age 50 and wealthy men 31 disability-free years, while those that were poor eight to nine years less healthy years.

Race, social class and education level did not have any measurable effect on the results, but wealth did. “More wealth means it’s easier to get to your appointments and access additional services that would not be available to people with less,” said Dr. Corinna Loeckenhoff, who was not involved in the study and is the director of the Healthy Aging Laboratory at Cornell University. But there are other factors to consider in one's longevity, such as a healthy diet, exercise, and reducing stress. The researchers had previously found that older Americans tended to be less healthy than older Britons, largely because of obesity.

See Heather Murphy, Rich People Don’t Just Live Longer. They Also Get More Healthy Years., New York Times, January 16, 2020.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

January 18, 2020 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Thursday, January 16, 2020

Taxation and Gender Equality Conference: Research Roundtable and Policy Program

CLETaxation and Gender Equality Conference: Research Roundtable and Policy Program, September 14-15, 2020.

Deadline for Expressions of Interest: March 15, 2020

As the Organizers and members of the Academic Advisory Committee we are pleased to issue this Announcement and Call for Contributions to an event that will be held on September 14 and 15, 2020, in Washington, DC, to explore the interaction between tax law and gender equality. The goal of the Conference, which is sponsored by the Tax Policy Center, the American Tax Policy Institute, the American Bar Foundation, and, subject to the final approval of their boards, the Tax Section of the American Bar Association and the American College of Tax Counsel, is to shine a spotlight on gender issues in taxation and to bring consideration of gender impacts into mainstream discussions surrounding the enactment and administration of tax laws. The intended scope of the Conference is broad, focusing not only on gender issues in U.S. tax law but also on gender issues in the tax laws of other countries; it will consider all taxes, whether income, consumption, transfer, wealth, or other national-level taxes, as well as subnational taxes.

The Conference will begin on Monday, September 14, 2020 at the Washington, DC, offices of Pillsbury Winthrop Shaw Pittman with a research roundtable featuring principally academic papers. The research roundtable will follow the format typical of academic conferences, providing ample time for conversation among participants.

The second day of the Conference, Tuesday, September 15, 2020, will be held at the Urban-Brookings Tax Policy Center, also in Washington, DC. It will consist of a policy-oriented program of panel discussions bringing together academics, practicing attorneys, economists, policy makers, legislators and others to consider issues related to gender and taxation and to consider strategies for incorporation of gender-related concerns into everyday tax policy discourse. At least one panel will feature the recent work undertaken by the National Women’s Law Center exploring the relationship between taxation and gender (see https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/11/NWLC-Tax-Executive-Summary-Accessible.pdf).

We are now seeking participants interested in contributing either to the research roundtable or to the policy program (or to both). Participants can be legal academics, economists, legal practitioners, government officials, policy researchers, or others with an interest and expertise in tax law and its administration. Contributors from the United States as well as other countries are welcome.

Scholars, analysts and policymakers of all levels of seniority and from all disciplines are invited to submit proposals for consideration for inclusion in panel discussions. We expect that for each day of the program, there will be approximately 5-10 speaking slots available. Contributions to be presented at the research roundtable should be works in progress, not published (or committed to publication) prior to the conference. Contributions to be presented as part of the policy program may be works in progress or may be work published (or committed to publication) prior to the conference. A brief description of possible panel topics to be addressed in the policy program is provided below; please understand that this listing is intended to provide directional guidance on possible panel and research paper topics and should not be viewed as limiting the potential issues to be addressed.

Those interested in presenting at either the research roundtable or the policy program portion of the Conference should send an abstract of no more than 500 words describing their proposed presentation, an indication of whether the proposal is for the research roundtable or the policy program, and a copy of their CV to Alice Abreu at taxandgender@temple.edu. If the proposed panel presentation is based on a published or soon-to-be-published work, please also attach a copy or draft of the work. Expressions of interest are due by March 15, 2020. The Academic Advisory Committee expects to notify accepted participants by May 1, 2020. Accepted participants should submit circulation drafts of the work to be presented no later than August 14, 2020. Selected participants may be invited to publish their completed papers in The Tax Lawyer or may choose to publish elsewhere. (The Tax Lawyer is the flagship scholarly journal published by the Tax Section of the American Bar Association and is published in cooperation with the Graduate Tax Program of the Northwestern University Pritzker School of Law; it has a robust circulation both in print and through electronic access).

Limited funding may be available for reasonable travel expenses of those selected to present their work; in your expression of interest please indicate whether you will need financial assistance to participate in this event. There is no fee for attending the conference. The conference will be webcast and is open to members of the public.

We look forward to hearing from many interested potential contributors.

Organizers: Julie Divola (Pillsbury Winthrop Shaw Pittman and American Tax Policy Institute), Elaine Maag (Tax Policy Center), and Alice Abreu (Temple Center for Tax Law and Public Policy and American Tax Policy Institute)

Academic Advisory Committee: Alice Abreu (Temple), Bridget Crawford, (Pace) Anthony Infanti (Pittsburgh), Ariel Jurow Kleiman (San Diego), and Stephen Shay (Harvard)

POSSIBLE DISCUSSION TOPICS

The following is a representative list of panel topics for the policy program. Final panel topics will be determined based upon the abstracts received in response to this Call for Contributions.

    • In general: A review of the positive and negative (intentional and unintentional) impacts of tax laws on gender equality, including a broad discussion of the form such tax laws can take (e.g., the marriage penalty, deductions or exemptions for entrepreneurial efforts, consumption vs. income taxes, wage withholding taxes, pink taxes, corporate tax expenditures).
    • Impacts of U.S. tax laws on gender equality. Possible topics for separate panels include:
      • Specific issues under the TCJA.
      • A comparisons of gender equality issues as reflected in the tax reform proposals advanced by the current presidential candidates.
    • One or more topics covered in three interrelated reports prepared by the National Women’s Law Center (NWLC) that examine the federal tax code with a focus on gender and racial equity and explore policies to make the tax code work for everyone. (See (i) The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws, (ii) Reckoning with the Hidden Rules of Gender in the Tax Code: How Low Taxes on Corporations and the Wealthy Impact Women’s Economic Opportunity and Security and (iii) The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws at https://nwlc.org/resources/gender-and-the-tax-code/.) The papers were prepared by NWLC in collaboration with Groundwork Collaborative, the Roosevelt Institute, and the Georgetown Center on Poverty and Inequality.
    • Impact of U.S. tax administration (including collection and other enforcement efforts) on gender equality (e.g., innocent spouse relief).
    • Discussion of the economic impact of tax laws that influence gender equality (e.g., distributional effect on how income is distributed between the sexes and allocative effect on how paid and unpaid labor is allocated between the sexes). General discussion of the connection between gender equality and economic growth.
    • Examination of tax systems in countries that have historically been more thoughtful than the United States on the question of taxation and gender equality, including measures such countries have taken to advance the issue. For example, the German Technical Cooperative has a program to support OECD partner countries in their efforts to reform tax policy and tax administration to avoid or eliminate gender bias.
    • Examination of the impact of tax laws on gender equality in developing countries. For example, the International Centre for Tax and Development with support from the Bill and Melinda Gates Foundation has done research in this area.
    • Use of gender-neutral language in the tax law and government publications and encouraging equivalent use of names that suggest male, female, and indeterminate genders and the accompanying pronouns.

January 16, 2020 in Conferences & CLE, Current Affairs, Estate Planning - Generally, Income Tax | Permalink | Comments (0)

Dying in the Neurosurgical I.C.U.

BrainscanWhen a doctor diagnoses a patient with brain death, no matter what a doctor does, the organs and rest of the body inevitably follows. But when an injury is devastating to the brain but has not incurred in becoming brain dead, the decisions of the physician as well as the family of the patient can be much more difficult.

Often times inconsistent communication and support between medical staff members and families exacerbate the situation. A new field, neuropalliative care, seeks to focus “on outcomes important to patients and families” and “to guide and support patients and families through complex choices involving immense uncertainty and intensely important outcomes of mind and body.” Together, family members and neuro-I.C.U. caregivers can agree on the appropriate action when the patient has not provided a legal document dictating their wishes, including transitioning the patient to comfort care and allowing the patient to die.

Doctors often think it is most important to be precise and not make mistakes; to predict the future and provide patients and their families with medical certainty. But usually connection and empathy are far more important than certainty. Patients and families want to know that the physicians care about them and that they appreciate their pain in difficult circumstances.

See Joseph Stern, M.D., Dying in the Neurosurgical I.C.U., New York Times, January 14, 2020.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

January 16, 2020 in Current Affairs, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, Science | Permalink | Comments (0)

Wednesday, January 15, 2020

CLE on The SECURE Act: Who Are You and What Have You Done With My Minimum Distribution Rules?

CLEThe American Law Institute is holding a webcast entitled, The SECURE Act: Who Are You and What Have You Done With My Minimum Distribution Rules?, on Thursday, February 13, 2020 from 12:00 pm to 1:30 pm Easter. Provided below is a description of the event.

Why You Should Attend

The minimum distribution rules that apply to many IRAs and retirement plans have been around over 30 years. They have been challenging to interpret and apply, but the tax and estate planning community has gradually learned to work with them. During this period total U.S. IRA and retirement plan assets grew to nearly $25 trillion, accounting for 36% of household financial assets. Most of these funds are income tax deferred, representing significant potential tax revenue.

The SECURE Act that was signed into law on December 20, 2019 is the most significant retirement plan legislation in many years. The SECURE Act made many changes to retirement plan rules that have been touted as providing benefits to individuals and small businesses. How did Congress decide to pay for these changes? By curtailing the post-death deferral period under the minimum distribution rules, thus tapping into that $25 trillion nest egg more quickly.

If you’re a tax or estate planning practitioner, you need to get up to speed on these new rules right away. Register today for this 90 minute webcast and learn when to apply the new rules and when the old rules still apply.

What You Will Learn

A faculty of highly experienced estate planning practitioners and ACTEC Fellows will address:

    • Why age 72 is the "new" 70-½
    • The new post-death rules for "designated beneficiaries"
    • Special rules that apply to certain "eligible designated beneficiaries"
    • New trust rules grafted on top of existing see-through trust rules
    • Planning for the spouse as beneficiary
    • Planning for children as beneficiaries
    • Planning for chronically ill and disabled beneficiaries, including special needs trusts
    • Building flexibility into trusts to make use of the post-mortem planning window
    • Effective date rules
    • What practitioners should consider in reviewing and updating existing plans

All registrants will receive a set of downloadable course materials to accompany the program.

Who Should Attend

Estate planners, tax advisors, and other related professionals will benefit from this webcast jointly offered by ALI CLE and ACTEC.

January 15, 2020 in Conferences & CLE, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Tuesday, January 14, 2020

New SECURE Act Affects Estate Planning for Retirement Plans

SecureactpiggybankThe Setting Every Community Up for Retirement Enhancement Act (SECURE Act) went into effect January 1st of 2020 and for the foreseeable future drastically changes estate planning with retirement plans. Prior to the Act, beneficiaries could stretch out the distributions from an inherited IRA over thir lifetime to get the tax-deferred benefits. That is no longer the case and many may need to review their plans.

Now most inherited retirement plans must be fully distributed within 10 years of the participant's death, unless they fit into these 5 categories: (1) the participant's spouse; (2) the participant's minor children; (3) disabled beneficiaries; (4) chronically ill beneficiaries; and (5) beneficiaries less than 10 years younger than the participant. A surviving spouse can also still roll over inherited benefits into their own IRA.

Conduit trusts may become a relic under the Act as they could cause punitive income tax consequences. Also, trusts with conduit provisions no longer provide the long-term control or protection of retirement benefits and their proceeds for beneficiaries that many plan participants previously expected. An accumulation trust could still be an option for plan participants which allows the required distributions to collect inside a trust, with the trustee maintaining discretion regarding distributions to trust beneficiaries. The retirement account must still be fully distributed to the trust within 10 years.

See Sarah B. Bowman and Catherine (Cat) N. L. Connell, New SECURE Act Affects Estate Planning for Retirement Plans, K&L Gates Hub, January 13, 2020.

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

January 14, 2020 in Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Monday, January 13, 2020

Article on Testate Succession Under Ukrainian Law

UkraineIryna Dikovska recently published an Article entitled, Testate Succession Under Ukrainian Law, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

The article analyses the legal aspects of the development of testate succession in Ukraine. In particular, it focuses on the notion of the will, the capacity of its making, special types of wills and their form. The content of wills is being viewed through the principal of testamentary freedom. The article offers the solution of such controversial issues of Ukrainian succession law as the legal nature and content of joint wills, the consequences of the death of one of the spouses, as well as the nullity or dissolution of marriage for joint wills, the requirements to the conditions in conditional wills. It critically examines the order of recording of wills. The article reveals the legal nature of the relationships caused by the legacy. It compares the legacy with other special testamentary dispositions. The article compares certain solutions of Ukrainian succession law with the legal rules of some other countries.

January 13, 2020 in Articles, Current Affairs, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Saturday, January 11, 2020

Article on Resolving the Status of the Bare Trust

TrustsRobert Flannigan recently published an Article entitled, Resolving the Status of the Bare Trust, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

A number of diverse arrangements commonly are described as “bare trusts.” Trustees are said to be bare trustees where, for example, they have no active duties, they are controlled by settlors or beneficiaries, or their trustee status is imposed on them for arrangements they create, actions they take or wrongs they commit. The question that arises is whether the bare trust designation describes a distinct legal form. Do these arrangements constitute a class of trust that is regulated in ways that other trusts are not, or is the bare trust designation no more than a convenient descriptor for a functional difference that has no substantive legal significance? I shall explain that bare trusts do not differ in kind from other trusts. They simply are trusts that have a narrow function. The function of the trustee is, or becomes, merely to hold legal title to the trust assets, whatever other relations or obligations might be involved ex ante or concurrently. I shall explain that bare trustees, to the extent of their trustee capacity, are not subject to unique rules. I will illustrate that primarily by refuting the assertion that bare trustees are not status fiduciaries. I will coincidentally refute the assertion that a controlled bare trustee is a novel amalgamation of trust and agency status.

January 11, 2020 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Special Ownership for Married Couples: Tenancy by the Entirety

MarriageIn many states married couples have the option to own property jointly and equally in a manner that not only avoids probate like joint tenancy but also eliminates the threat of creditors. This type of ownership is tenancy by the entirety and is available in roughly half of the states and District of Columbia.

Tenancy by the entirety maintains the same right of survivorship as a joint tenancy, but one spouse cannot sell his or her interest without the other’s permission. The creditors of one spouse may place a lien on property held in tenancy by the entirety, but if the debtor dies before the other spouse, the other spouse takes ownership of the property free and clear of the debt. Thus both spouses must sign a mortgage on a property held by a tenancy by the entirety for the mortgage to be valid.

If you live in a state that allows tenancy by the entirety, it may be a good idea to see if the property is in fact owned in that manner. If an unmarried couple buys property and then subsequently marries, they should check if they can re-title the deed as tenants by the entirety to avail themselves of the greater protections this form of tenancy offers.

See Special Ownership for Married Couples: Tenancy by the Entirety, Milvidskiy Law Firm, December 10, 2020.

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

January 11, 2020 in Current Affairs, Estate Planning - Generally | Permalink | Comments (0)