Wills, Trusts & Estates Prof Blog

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

Thursday, November 15, 2018

How to Choose the Right Guardian

BabyhandIf you have minor children, selecting the right person to be the guardian for them in the tragic instance that you die or become incapacitated is one of the most important planning decisions that you have to make. Failing to do so could put the future of your precious offspring in the hands of an impersonal court system.

Tackling the responsibility of another person's child or children is not one that should be taken lightly, and thus should be accepted willingly and with a complete understanding of the duty. A proper guardian should be reliable and stable, with sound judgment and values that are similar to your own so the person can be an appropriate surrogate parent. Though being a family member is often seen as a necessary factor in being a guardian, it is not required. But having an established and caring relation with the child or children can be considered immensely valuable.

Children can be inherently expensive, from sports to education to medical bills. Asking a person to be the guardian for your children is also asking them to be responsible for their financial obligations as well. Therefore, it is important to work with a knowledgeable estate planner who can help arrange financial support not only directly for your child, but also if necessary, for the personal costs that the guardian incurs in taking care of your children. Depending on the circumstances and the people or person you choose, the trustee for your children's trust can be the same person or different from the person who choose to be the children's guardian.

See Cheryl E. Hader & Jonathan Kane, How to Choose the Right Guardian, Kramer Levin, November 8, 2018.

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

November 15, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Wednesday, November 14, 2018

Article on Non-Grant of ‘Letters of Administration’ Where ‘Suit for Partition’ is the Efficacious Remedy

TajShivam Goel recently published an Article entitled, Non-Grant of ‘Letters of Administration’ Where ‘Suit for Partition’ is the Efficacious Remedy, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

The scope of an administration suit is to collect the assets of the deceased to pay off the debts and other charges and to find out what is the residue of the estate available for distribution amongst the heirs of the deceased. A suit for partition is distinct from an administration suit. Though administration of the estate may ultimately after accounts are taken also entail ‘partition’, but where it is found that there is no need for administration and what is in effect sought is partition only, the court is entitled in exercise of discretion under Section 298 of the Indian Succession Act, 1925 (hereinafter referred to as the ‘ISA’) to refuse the grant of Letters of Administration and to relegate the parties to the remedy of partition.

November 14, 2018 in Articles, Estate Administration, Estate Planning - Generally, Travel | Permalink | Comments (0)

Paul Allen's Will Sheds Little Light on What Will Happen to Estate

PaulallenPaul Allen’s six-page will was filed with King County on October 24, the same day that his sister, Jody, was announced as his executor and trustee of his estate. His will did not provide as much clarification as anticipate, instead pointed to a living trust established decades ago. The disposition of the assets within the trust are not expected to be made public. Forbes has estimated his wealth at $20 billion.

Allen died on October 15 at age 65 from complications of non-Hodgkin lymphoma. He was a co-founder of Microsoft, owned the Seattle Seahawks, donated significantly to the arts community and scientific research, and ran the multifaceted Vulcan Inc., which reshaped the real-estate landscape of South Lake Union.

Jody Allen said last month that “I will do all that I can to ensure that Paul’s vision is realized, not just for years, but for generations.” Allen signed the will on July 18, with two Vulcan employees as witnesses.

See Rachel Lerman, Paul Allen's Will Sheds Little Light on What Will Happen to Estate, Seattle Times, November 8, 2018.

Special thanks to Adam J. Hirsch (Professor of Law at the University of San Diego School of Law) for bringing this article to my attention.

November 14, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Podcast: Lending in the Probate Context

ACTEC_FoundationWhat is probate lending?  Hear from ACTEC Fellow Professor David Horton of Davis, California, on this topic in a recent ACTEC Trust & Estate Talk podcast entitled Lending in the Probate Context.

November 14, 2018 in Estate Administration | Permalink | Comments (0)

Tuesday, November 13, 2018

CLE on Irrevocable But not Irredeemable: How to Fix or Modify a Trust

CLEThe American Law Institute is holding a webcast entitled, Irrevocable But not Irredeemable: How to Fix or Modify a Trust, on Wednesday, December 5, 2018 at 12:00 p.m. to 1:00 p.m. Eastern. Provided below is a description of the event:

Why You Should Attend

Your client undoubtedly had excellent reasons for creating an irrevocable trust in the first place. He may have created an irrevocable trust to protect his own assets from the hands of creditors. He may have created an irrevocable trust to provide funding for his children without giving them direct access to those funds. He may have created an irrevocable trust for transfer tax planning purposes. But as time passes, the terms of that trust may no longer suit the needs of your client or the trust beneficiaries. Fortunately, their irrevocable trust can likely be modified and brought up-to-date to suit their current needs.   This practical one-hour audio program will give you the tools to determine when an irrevocable trust can and should be modified, and teach you about various methods to modify the trust.  

What You Will Learn

Topics to be covered include:

Determining when a trustee should modify an irrevocable trust;

Understanding the techniques to modify the trust; and

Drafting irrevocable trusts in light of a possible modification in the future

  This program was originally presented on July 25, 2018. Faculty questions will be answered by email within two business days.   Need this information now? Purchase the on-demand course here. Questions submitted on-demand will be answered within two business days.  

Who Should Attend

Estate planning attorneys who are drafting and advising on irrevocable trusts.

November 13, 2018 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, November 11, 2018

New PLR Addresses Special Trustee's Power to Limit or Eliminate Testamentary General Power of Appointment

IrsThe IRS recently issued a private letter ruling addressing key issues with respect to an independent special trustee’s power under a trust instrument to limit or eliminate a testamentary power of appointment granted in favor of the primary trust beneficiary. Significant, the IRS acknowledged that a testamentary general power of appointment is not considered to be exercisable during the lifetime of the power holder.

The private letter ruling is particularly interesting in that certain trust assets that would otherwise be included in the Primary Beneficiary’s gross estate may now be excluded from the Primary Beneficiary’s gross estate if the special trustee exercises its power to limit or eliminate the Primary Beneficiary’s testamentary power of appointment.

The IRS accepted the taxpayer’s position that the power of appointment set forth in the trust agreement is conditioned upon the Primary Beneficiary dying before an independent trustee limits or eliminates the power of appointment. The result of this ruling is that if the independent trustee were to exercise its discretionary power under the trust agreement to eliminate the Primary Beneficiary’s testamentary power of appointment, then such power of appointment would not exist upon the Primary Beneficiary’s death, and the trust assets would not be included in the Primary Beneficiary’s gross estate.

See Ashley L. Gill, New PLR Addresses Special Trustee's Power to Limit or Eliminate Testamentary General Power of Appointment, Mitchell Williams Law, November 6, 2018.

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

November 11, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Saturday, November 10, 2018

Article on Testamentary Freedom and Family Protection in Scotland

ScotlandKenneth Reid recently published an Article entitled, Testamentary Freedom and Family Protection in Scotland, Wills, Trusts, & Estate Law eJournal (2018). Provided below is an abstract of the Article.

In a sense, testators in Scotland are free to do as they please, for a will is not challengeable on the ground of having failed to provide for children, or a spouse, or some other relative. Yet, regardless of what a will says or does not say, a child or spouse of the deceased is entitled to a fixed share of the deceased’s estate. Since 1964 this has been confined to the deceased’s movable estate and there is no claim in respect of immovable property. Where a deceased is survived by both spouse and children, the movable estate is divided into three – one-third for the spouse, one-third to be shared among the children, and one-third to be disposed of in accordance with the will. Where only a spouse, or only children, survive, the division is into two equal parts and not three. These ‘legal rights’ of the children and surviving spouse are personal rights against the executor of the deceased and are satisfied by payment in money.

This paper considers the history of legal rights in Scotland, their scope and calculation, the rules on discharge, the requirement to collate lifetime advances, and the requirement to choose between legal rights and an express bequest in the will.

Legal rights are of medieval origin, and have survived various attempts to change them. In recent years, the position of children has been seen as especially controversial. On one view, children should have merely a maintenance claim from the deceased’s estate, in cases of proved need. On another view, a child’s position in the family should continue to be recognised by means of a fixed share in their late parent’s estate. In the absence of consensus on this issue, the Scottish Government has recently rejected a package of reforms proposed by the Scottish Law Commission. Uncertain as to what the future should hold, Scotland has chosen to stick with rules developed, unthinkingly, in the distant past.

November 10, 2018 in Articles, Current Affairs, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, November 9, 2018

CLE on Top Ten Estate Planning Techniques After the 2017 Tax Act

CLEThe New York City Bar is holding a conference and webcast entitled, Top Ten Estate Planning Techniques After the 2017 Tax Act, on Wednesday, November 14, 2018 at 6:00 p.m. - 9:00 p.m. at the New York City bar in New York City, New York. Provided below is a description of the event:

When attorneys meet with clients to discuss estate planning, there is an assortment of ideas that are considered, discussed, and presented to clients. This program covers the ten estate planning techniques that the speakers most frequently consider. The goal of the program is to discuss how each technique works, including some of the more pressing (or troublesome) technical considerations, who it works for, as well as the salient planning considerations. Some of the techniques covered include lifetime planning, GRATs, QPRTs, sales to IDITs, Family Limited Partnerships, CRUTS, CLATs, insurance trusts, and a few other common planning techniques.

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

November 9, 2018 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Income Tax, New Legislation, Trusts | Permalink | Comments (0)

A To-Do List for Widows, and How to Protect the Identity of a Dead Loved One

Calla-liliesWidows and widowers are often facing debilitating grief while attempting to get their lives, futures, and finances in order. Having an effective plan and to-do list in place could make this difficult time more emotionally manageable. Also, having a deceased loved one's identity stolen can be a painful reminder of their absence, and a great violation to their memory, so taking steps to prevent it are important.

  • Inform Social Security of the loved one's death and notify all credit bureaus as well to freeze the person's credit.
    • Death Certificate and letters testamentary will be required.
  • Notify tax preparer, and financial institutions.
    • In the event that there is a non-qualified account then there should be a step-up in basis on at least 50% of the account and possibly 100% of the account, depending on the circumstances.
    • And IRA can be treated as a rollover account for a spouse
  • Review life insurance policies and see your options so you can decide what makes the most sense based on cash flow needs.
  • Meet with an estate planning attorney if there was a will or trust to understand the loved one's final wishes.
  • Have a tax projection prepared.
  • Sign proper forms for all brokerage accounts and new account forms in order to reflect the new ownership and title.

See Karin Price Mueller, A To-Do List for Widows, and How to Protect the Identity of a Dead Loved One, NJ.com, November 6, 2018.

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

November 9, 2018 in Current Affairs, Elder Law, Estate Administration, Estate Planning - Generally, Income Tax, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Billionaire Family Feud Widens as Son Sues Sister

CanadaOne of Canada's richest family's drama and intrigue thickens. Former Magna International Inc. Chief Executive Officer Belinda Stronach is now being sued by her brother Andrew, claiming that he has lost faith in her and that she should be removed from a family trust. Andrew wants her to be replaced by their billionaire father, who is also suing Belinda at a tune of $520 million Canadian dollars.

Both disputes arise from Belinda handling of the family trusts after her father, Frank Stronach, handed over control of them to pursue politics in his native country of Austria. The latest suit, filed November 1, claims Belinda and trustees “have undertaken a number of improvident and costly investments that have resulted in significant losses.” The lawsuit also alleges that Andrew was not giving proper accounting of the trust. “To date, Andrew’s proper and reasonable requests for information have been ignored, or only partially answered after lengthy delays and following repeated requests for disclosure,” according to documents filed with the Ontario Superior Court.

“The filing on behalf of my brother is an extension of my father’s legal pursuit against me and my children, and the allegations remain just as untrue,” Belinda Stronach said in a statement Monday. “We will be responding formally in due course. It saddens me greatly that we have reached this juncture in our family.” A spokesperson said that both claims were completely without merit.

See Doug Alexander & Fredric Tomesco, Billionaire Family Feud Widens as Son Sues Sister, Financial Advisor, November 8, 2018.

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

November 9, 2018 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Travel, Trusts | Permalink | Comments (0)