The Estate Planner - Thomson Reuters
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|March 2011 | | |
|IN THIS ISSUE: | |The Estate Planner Archive |
| | | |
|News, Articles, and Updates for the Estate Planner | |Cowles Resources |
|See updates and article references involving charitable trusts and donations;| |Order Cowles and Supplies |
|elder law, estate and gift taxes, estate and trust administration/probate; | |Cowles Members Only |
|estate planning; generation-skipping transfer tax; health care; interest; | |Westlaw |
|retirement; same-sex marriage/civil unions/domestic partnerships; small and | | |
|mid-size law firm practice; special needs trusts/ guardianships, trusts; and | |Contact Us |
|wills. | |E-Mail the Editor |
| | | |
|Cowles Tech Tip | |Other Resources |
|Version 2011-1 of Trust Plus and TrusTerminator is now available. | |Other Reference Material |
| | |Other Newsletters |
|The CD version of the release will be mailed to customers in the near future,| | |
|but you can also install it today by downloading it directly from Members | | |
|Only. | | |
| | | |
|This Tech Tip highlights the new additions and improvements you'll find in | | |
|this release of Trust Plus and TrusTerminator, including updated options and | | |
|language for the 2010 Tax Relief Act, a new IRA trust module, and new | | |
|customizable register and trust accounting reports, and more. | | |
| | | |
| | | |
|See all articles in this issue |
| |
| |
|NEWS, ARTICLES, AND UPDATES |
|For The Estate Planner |
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|Charitable Trusts and Donations |
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|OTHER |
|Minnesota. State Enacts Legislation Conforming Tax Provisions to Federal Tax Changes Made in 2010. On March 21, Minnesota Gov. |
|Mark Dayton signed a bill (H.F. 79) that brings most of the state’s tax provisions into conformity with the federal tax changes |
|made in 2010. Conforming changes include extending the authority for individuals age 70 1/2 and older to transfer up to $100,000 |
|from an IRA or Roth IRA directly to a qualified charity and extending the increase in the federal AGI limit on the amount of |
|qualified conservation easements that may be claimed as a charitable deduction. The decision to conform to federal changes is |
|only effective for tax year 2010. Westlaw: 2011 MN H.F. 79, Minnesota 87th Legislative Session (March 21, 2011); Web: H.F. 79, |
|Minnesota 87th Legislative Session (March 21, 2011). |
|Oregon. State Enacts Legislation Conforming Tax Provisions to IRC. On March 9, Oregon Governor John Kitzhaber signed legislation |
|(S.B. 301) that conforms many of its tax provisions to the Internal Revenue Code as in effect on December 31, 2010. An internet |
|notice posted by the Oregon Department of Revenue lists both provisions that are “connected” to federal law and those that are |
|“disconnected”. Among those listed that conform to federal provisions are tax-free distributions from IRAs for charitable |
|purposes and contributions of capital gain property for conservation purposes. Westlaw: 2011 OR S.B. 301 (NS), Oregon 76th |
|Legislative Assembly (March 9, 2011); Web: S.B. 301, Oregon 76th Legislative Assembly – 2011 (March 11, 2011); Oregon Disconnect |
|from Federal Law: 2010, Oregon DOR (March 10, 2011) |
|AHP. Survey Examines Effect of Administration’s Proposed Changes to Tax Incentives for Charitable Giving. Recently, the |
|Association for Healthcare Philanthropy issued its recent survey results on the impact of proposed changes to tax incentives for |
|charitable giving in The Effect of Proposed Changes to Charitable Gift Tax Deductibility on Health Care Philanthropy. The survey |
|is in response to the U.S. Administration’s National Commission on Fiscal Responsibility and Reform’s December 1, 2010 deficit |
|reduction proposal in which it recommends significantly reducing tax incentives for charitable giving to a 12% tax credit for |
|giving above 2% of AGI. According to the report the vast majority of respondents said that the proposed changes will negatively |
|affect their fundraising programs. Westlaw: 051 DER G-5, 2011, 2011 WL 881287 (March 16, 2011); Web: The Effect of Proposed |
|Changes to Charitable Gift Tax Deductibility on Health Care Philanthropy, AHP (March 2011). |
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|Elder Law |
| |
|LEGISLATION |
|Kentucky. Civil Remedies For Exploitation of an Adult; The Elder And Vulnerable Victims Trust Fund Created. Kentucky has passed |
|legislation establishes an elder and vulnerable victims trust fund to provide funding for programs combating elder and vulnerable|
|adult abuse, neglect, or financial exploitation. The legislation also adds the commission of a felony under KRS Chapter 209 to |
|offenses that trigger an offender's forfeiture of the right to inherit property from the victim of the offense, and directs that |
|any escheated property be directed to the elder and vulnerable victims trust fund. A civil remedy with treble damages for use |
|against persons who are convicted of exploitation of an adult and fail to return the victim's property within 30 days of an order|
|by the sentencing court to do so is also added to KRS 209.990. (2011 Kentucky House Bill No. 52, Kentucky 2011 Regular Session; |
|Title: An Act Relating To Elder And Vulnerable Adult Abuse, Neglect, And Financial Exploitation And Making An Appropriation |
|Therefor., VERSION: Enrolled). Westlaw: 2011 KY H.B. 52 (NS); Web: Kentucky Legislature. |
|Virginia. Real Estate Tax Relief For The Elderly And Permanently And Totally Disabled. Virginia has passed legislation providing |
|for real estate tax relief for the elderly and permanently and totally disabled. The act authorizes local governments to |
|establish annual income or financial worth limitations as a condition of eligibility for real property tax relief for the elderly|
|and permanently and totally disabled. The law implements the amendment to Article X, Section 6 (b) of the Constitution of |
|Virginia that limits the General Assembly's ability to establish the limitations and allows the General Assembly to authorize |
|local governments to establish the limitations. (2010 Virginia House Bill No. 2278, Virginia 2011 Regular Session; Title: Real |
|Estate Tax; Relief For Elderly And Permanently And Totally Disabled., VERSION: Adopted). Westlaw: 2010 VA H.B. 2278 (NS); Web: |
|Virginia Legislature. |
|West Virginia. Financial Exploitation of the Elderly, Protected Persons and Incapacitated Adults. West Virginia has passed |
|legislation relating to crimes against the elderly, protected persons or incapacitated persons. The law addresses financial |
|exploitation of the elderly, protected persons and incapacitated adults in misappropriating or misusing assets; permits the |
|prosecutor to cumulate amounts or values when charging; permits banking institutions and others to report suspected financial |
|exploitation to law-enforcement authorities and other entities; permits financial institutions to disclose suspicious activity |
|reports or currency transaction reports to the prosecuting attorney; provides civil immunity for reporting; orders restitution; |
|and establishes the criminal penalty of larceny. (2011 West Virginia House Bill No. 2362, West Virginia Eightieth Legislature - |
|Regular Session, 2011; Title: Increasing Penalties For Financial Exploitation Of An Elderly Person Or Incapacitated Adult, |
|VERSION: Enrolled). Westlaw: 2011 WV H.B. 2362 (NS); Web: West Virginia Legislature. |
| |
|OTHER |
|U.S. Tax Court. Payments to Wife’s Caregiver Not Deductible Business Expenses by Self-employed Husband. On March 1, the U.S. Tax |
|Court disallowed business-expense deductions Joseph Kuntz III and Syrita Kuntz claimed for amounts they paid to a caregiver for |
|Mrs. Kuntz, who has Alzheimer’s disease, beyond the payment for clerical work performed by the caregiver for Mr. Kuntz time and |
|marble business. Mr. Kuntz argued that he had to employ someone to look after his wife while he was at work since she could not |
|stay by herself, but the court said that the expense of caring for her is not deductible under I.R.C. § 162 since it is not an |
|ordinary and necessary expense of carrying on a trade or business even though it allowed Mr. Kuntz to work outside the home. |
|However, the couple is entitled to medical-expense deductions under I.R.C. § 21, which allows a taxpayer a credit for a |
|percentage of the expenses of caring for a spouse who is “physically or mentally incapable of caring for himself or herself and |
|who has the same principal place of abode as the taxpayer” if “such expenses are incurred to enable the taxpayer to be gainfully |
|employed”. Westlaw: Kuntz v. Commissioner, T.C., No. 7691-09, T.C. Memo. 2011-52, 2011 WL 701451, U.S.Tax Ct., 2011 (March 1, |
|2011); Web: Kuntz v. Commissioner, T.C., No. 7691-09, T.C. Memo. 2011-52, U.S.Tax Ct., 2011 (March 1, 2011) |
| |
|Estate and Gift Taxes |
| |
|ARTICLES |
|Control at What Cost? Annual Exclusion Gifts and Present Interests. Hugh F. Drake. (Probate and Property, March/April, 2011). |
|Westlaw: 25-APR Prob. & Prop. 36. |
|Indiana Inheritance Tax Impact of Formula Clause Fix. Tracey A. Anderson, Jerome Margraf. (Res Gestae, March, 2011). Westlaw: |
|54-MAR Res Gestae 17. |
|The Return of the ‘Death Tax’. Mellany L. McDonald. (Houston Lawyer, January/February, 2011). Westlaw: 48-FEB Hous. Law. 24; Web:|
|Houston Lawyer. |
| |
|IRS DECISIONS, REGULATIONS, AND GUIDANCE |
|IRS. IRS Pushes for Release of Property Transfer Records to Identify Noncompliant Gift Tax Filers. In an ex-parte petition dated |
|December 27, 2010 filed with the U.S. District Court for the Eastern District of California, the U.S. Department of Justice asked|
|for leave to serve an IRS “John Doe” summons on the State of California Board of Equalization that requires the board to turn |
|over property transfer records filed by taxpayers who, between 2005 through 2010, transferred real property in California for |
|little or no consideration. According to a declaration by Josephine Bonaffini, the Federal/State Coordinator for the IRS Estate |
|and Gift Tax Program, filed with the petition, for the past 18 months the IRS has been examining nationwide records of taxpayers |
|who transferred real property for little or no consideration to related family members and did not report these transactions on a|
|Form 709. The IRS has already received information from Connecticut, Florida, Hawaii, Nebraska, New Hampshire, New Jersey, New |
|York, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Virginia, Washington, and Wisconsin, but the California Board of |
|Equalization has stated that it cannot provide similar information without a summons due to the restrictions of Cal. Civ. Code § |
|1798.24. Westlaw: Ex Parte Petition, 2011 WL 1090095, Declaration, 2011 WL 1090097, Memo in Support of Petition, 2011 WL 1090096 |
|(March 28, 2011); Web: In Re the tax liabilities of John Does, E.D. Cal., No. 2:10-mc-00130-MCE-EFB, filed 12/27/10. (Information|
|about this case is available on the U.S. Court's PACER system. A subscription to PACER is required.) |
|IRS. IRS Art Advisory Panel Find Over Half of Art Misvalued for Charitable Donation or Estate Purposes. The Art Advisory Panel to|
|the IRS stated in its Annual Summary Report for 2010 over half of the artwork the panel reviewed that was received as a gift or |
|as part of an estate or that had been donated to charity was not valued correctly in 2010, resulting in an underpayment of taxes.|
|Of the misvalued items, the Panel determined that charitable contribution claims were overvalued by 58 percent and that estate |
|and gift tax appraisals were undervalued by 43 percent. The report noted that all cases selected for audit that include art work |
|or cultural property with a claimed value of $20,000 or more must be referred to Art Appraisal Services for review by the |
|Commissioner's Art Advisory Panel when applicable. Westlaw: 044 DER G-4, 2011, 2011 WL 756601 (March 7, 2011); Web: The Art |
|Advisory Panel of the Commissioner of Internal Revenue Annual Summary Report for 2010, IRS Publications (March 5, 2011). |
|IRS. IRS Requests Public Comment on Form 8939. The IRS is soliciting comments from the general public on Form 8939, Allocation of|
|Increase in Basis for Property Acquired from a Decedent. I.R.C. § 6018 requires the form to be filed by an executor if the fair |
|market value of all non-cash property acquired from decedent is more than $1.3 million; for nonresident decedents who are not |
|U.S. citizens , if the fair market value of tangible property in the U.S. and other property acquired from decedent by a U.S. |
|person is greater than $60,000; or if appreciated property is acquired from decedent that decedent acquired by gift within three |
|years of death and a gift tax return was required on the transfer to decedent. Written comments are due to Allan Hopkins, |
|Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224 by May 6, 2011. Westlaw: 76 FR 12416-02,|
|2011 WL 766486 (March 7, 2011); Web: 76 FR 12416-02, GPO (March 7, 2011). |
|IRS. Section 2056 - Bequests, etc., to Surviving Spouse (Marital Deduction v. No Marital Deduction). The IRS ruled that the QTIP |
|election made for a family trust was null and void for purposes of §§ 2044, 2056(b)(7), 2519 and 2652 after it was determined |
|that after funding the Marital Trust, the QTIP election made for the Family Trust was not necessary to reduce the estate tax |
|liability to zero because there was no estate tax liability whether or not the election was made. Westlaw: PLR 201112001, 2011 |
|WL 1097111 (March 25, 2011); Web: PLR 201112001, IRS Written Determinations (March 25, 2011). |
|IRS. Section 2523 - Gift to Spouse (Marital Deduction Allowed v. Not Allowed). In this ruling the IRS revoked PLR 201025021 |
|retroactive to February 19, the date of issue. In the original ruling the Service had granted taxpayer an extension of time to |
|make an inter vivos QTIP election under I.R.C. § 2523(f)(4) for transfer of stock to a trust for the benefit of taxpayer’s |
|spouse. However, the Service now says it has determined that the ruling was in error and not in accord with the current views of |
|the Service. Westlaw: PLR 201109012, 2011 WL 759595 (March 4, 2011); Web: PLR 201109012, IRS Written Determinations (March 4, |
|2011). |
|IRS. Section 2032 - Alternate Valuation. In this ruling the IRS reconsidered its position in PLR 201033023 (May 19, 2010) in |
|which it had denied an extension of time to make the alternate valuation election, and now concludes that the estate meets the |
|requirements for relief, thus granting a 120-day extension for the estate to make the alternate valuation election under I.R.C. §|
|2032. Westlaw: PLR 201109014, 2011 WL 759597 (March 4, 2011); Web: PLR 201109014, IRS Written Determinations (March 4, 2011). |
|IRS. Section 9100 - Extension of Time for Making Certain Elections. The IRS has granted decedent's estate a 120-day extension to |
|make a “reverse” QTIP election under I.R.C. § 2652(a)(3) for an Exempt QTIP Trust and to allocate his GST exemption to the Exempt|
|QTIP Trust and the Credit Shelter Trust after the attorney who prepared the Form 706 failed to make the proper election and |
|allocations. Westlaw: PLR 201109016, 2011 WL 759599 (March 4, 2011); Web: PLR 201109016, IRS Written Determinations (March 4, |
|2011). |
| |
|LEGISLATION |
|Virginia. Formula Clauses Referring to Federal Estate and Generation-Skipping Transfer Tax Laws. Virginia has passed legislation |
|relating to formula clauses referring to federal estate and generation-skipping transfer tax laws in wills and trusts. The Act |
|amends a section added to the Code during the 2010 Session that was designed to address the consequences of the anticipated |
|repeal of the federal estate and generation-skipping transfer taxes with respect to estates and taxable transfers occurring in |
|2010, and the retroactive reinstatement of such taxes as well as other changes made to federal tax law. The act provides that the|
|decision by a decedent's personal representative not to have the estate tax apply to a decedent's estate in 2010 does not affect |
|the meaning of formula clauses for calculating transfers or devises based on federal estate or generation-skipping transfer tax |
|law contained in a will or other instrument. In addition, the legislation provides that the fiduciaries or beneficiaries of an |
|estate may petition the court to determine how the decedent would want such formula clauses construed, and may also enter into a |
|nonjudicial agreement regarding the construction of such clauses. The act is effective immediately. (2010 Virginia Senate Bill |
|No. 1423, Virginia 2011 Regular Session; Title: Wills & Trusts; Formula Clauses Referring To Federal Estate & Generation-Skipping|
|Transfer Tax Law., VERSION: Enrolled). Westlaw: 2010 VA S.B. 1423 (NS); Web: Virginia Legislature. |
| |
|OTHER |
|CRS. CRS Issues Report on Major Tax Proposals in President's FY 2012 Budget Proposal. On March 17, the Congressional Research |
|Service issued a report “An Overview of Major Tax Proposals in the President's FY2012 Budget,” which provides a broad overview of|
|the provisions included in the President Obama's budget proposal released in February. Included in the proposal is a return to |
|the estate and gift tax parameters that were in place in 2009 for decedents dying in 2013 and beyond, and permanent “portability”|
|of the deceased spouse’s unused exemption amount to the surviving spouse. Additional modifications to the estate tax would affect|
|“restrictions” on assets when determining valuation discounts and popular tax planning techniques involving grantor annuity |
|trusts and generation skipping transfers. [Congressional Research Service reports are not directly available to the public. The |
|reports are made public through requests to Members of Congress. Secondary sources include online legal services, like BNA's |
|Taxcore documents available on Westlaw (this report is 11 NO. 054 BNA Taxcore 029 (March 21, 2011). Incomplete collections also |
|exist on the web, often collected by subject. See ]. |
|JCT. JCT Issues Estimates for Revenue Provisions in President's FY 2012 Budget Proposal. On March 17, the Joint Committee on |
|Taxation issued its estimates on the effect of President Obama’s budget proposal released in February on revenues. Included in |
|the report are estimates on the impact of extending the 2009 parameters on estate, gift, and generation-skipping transfer taxes, |
|modification of estate and gift tax valuation discounts, and proposed reforms to grantor retained annuity trusts and generation |
|skipping transfers. Westlaw: JCX-19-11, 2011 WL 914593 (March 18, 2011); JCX-19-11, Joint Committee on Taxation (March 17, 2011).|
|U.S. Tax Court. Court Finds Decedent Did Not Retain Life Estate in Residence, Value Properly Excluded from Estate. On March 15, |
|the U.S. Tax Court held that the decedent, Sylvia Riese, did not retain a life estate in the residence she had transferred to a |
|qualified personal residence trust that terminated 6 months before her death even though she continued to live in the property, |
|paying associated expenses but not rent, as there was no express or implied understanding that she could occupy the residence |
|rent free. Therefore, the value of the residence was properly excluded from Reise’s gross estate on Form 706. The court also said|
|that the accrued rent during her occupancy after the QPRT terminated is deductible as a debt under I.R.C. § 2053, but that |
|neither unpaid rent on the residence by the estate during administration nor investment management fees paid by the estate to |
|decedent’s son-in-law are deductible as administrative expenses under I.R.C. § 2053. Westlaw: Estate of Riese v. C.I.R., T.C. |
|Memo. 2011-60, 2011 WL 94746, U.S.Tax Ct., 2011 (March 15, 2011); Web: Estate of Riese v. C.I.R., T.C. Memo. 2011-60, U.S.Tax |
|Ct., 2011 (March 15, 2011). |
|U.S. District Court. Court Upholds Charitable Deduction of $11.7 Million to Trust. On March 9, the U.S. District Court for the |
|Western District of Pennsylvania ruled that the Estate of Antonio Palumbo is entitled to a charitable deduction of $11.7 million,|
|which was paid from the estate to a charitable trust created by the decedent during his lifetime. Mr. Palumbo had executed |
|various wills during his lifetime that transferred his residuary estate to a charitable trust, but his latest will did not |
|include a residuary provision "due to a scrivener's error on the part of Mr. Palumbo's attorney." The IRS had argued that since |
|payment was made to the charitable trust pursuant to a settlement agreement between Mr. Palumbo's son and intestate heir and the |
|trust, the amount was not paid by operation of a residuary clause in the will, and thus, could not be claimed as a charitable |
|deduction from the estate. Westlaw: Estate of Palumbo v. United States, W.D. Pa., No. 10 cv0760, 2011 WL 824030 (March 9, 2011); |
|Web: Estate of Palumbo v. United States, W.D. Pa., No. 10 cv0760 (March 9, 2011) (Information about this case is available on the|
|U.S. Court's PACER system. A subscription to PACER is required.) |
| |
|Estate and Trust Administration; Probate |
| |
|ARTICLES |
|Designating the Application of Another State's Laws in a Trust. The Private Clients, Trusts and Estates Group of Schiff Hardin |
|LLP. (Estate Planning, April, 2011). Westlaw: 38 ESTPLN 40. |
|Disinheritance of Minor Children: a Proposal to Amend the Uniform Probate Code. Jacqueline Asadorian. (Boston College Third World|
|Law Journal, Winter, 2011). Westlaw: 31 B.C. Third World L.J. 101. |
|Gathering and Preserving Information from the Outset in Probate Litigation. Carl A. Aveni, II. (Ohio Probate Law Journal, |
|January/February 2011). Westlaw: 21 No. 3 Ohio Prob. L.J. 4. |
|Specialization in Estate Planning, Trust and Probate Law. Donald G. Schweller. (Ohio Probate Law Journal, January/February 2011).|
|Westlaw: 21 No. 3 Ohio Prob. L.J. 6. |
| |
|LEGISLATION |
|Idaho. Intestate Succession And Wills. Idaho has passed legislation concerning intestate succession. The act amends existing law |
|relating to intestate succession and wills to revise the time frame for filing a disclaimer under certain circumstances; and to |
|remove outdated provisions. (2011 Idaho Senate Bill No. 1121, Idaho Sixty-First Idaho Legislature, First Regular Session - 2011; |
|Title: Intestate Succession, Wills, VERSION: Adopted). Westlaw: 2011 ID S.B. 1121 (NS); Web: Idaho Legislature. |
|Idaho. Trustees; Equal Value Of Substituted Property. Idaho has passed legislation that adds to existing law relating to trusts |
|and fiduciaries to provide for the fiduciary duty of trustees to determine equal value of substituted property. (2011 Idaho |
|Senate Bill No. 1045, Idaho Sixty-First Idaho Legislature, First Regular Session - 2011; Title: Trusts And Fiduciaries, VERSION: |
|Adopted). Westlaw: 2011 ID S.B. 1045 (NS); Web: Idaho Legislature. |
|Idaho. Personal Representative Transactions and Powers of Conservators in Administration under Uniform Probate Code. Idaho has |
|passed legislation that amends existing law relating to the Uniform Probate Code to revise transactions authorized for personal |
|representatives; and to revise powers of conservators in administration. The law amends Idaho Code §§ 15-3-715 and 15-5-424. |
|(2011 Idaho Senate Bill No. 1044, Idaho Sixty-First Idaho Legislature, First Regular Session - 2011; Title: Uniform Probate Code,|
|Conservators, VERSION: Adopted). Westlaw: 2011 ID S.B. 1044 (NS); Web: Idaho Legislature. |
|South Carolina. Certain Reporters Comments Added to 2010 Probate Code Amendments. South Carolina has passed legislation that |
|directs the South Carolina Code Commissioner to include Reporters Comments in various provisions of the South Carolina Probate |
|Code, beginning with the 2011 Cumulative Supplement To The Code Of Laws Of South Carolina, 1976. The reporters notes are from the|
|2010 amendments to the code (Act 244 of 2010), which did not have the reporter notes available when publishing those amendments. |
|(2011 South Carolina Senate Bill No. 213, South Carolina One Hundred Nineteenth Session General Assembly - First Regular Session;|
|Title: An Act To Direct The South Carolina Code Commissioner To Include Beginning With The 2011 Cumulative Supplement To The Code|
|Of Laws Of South Carolina, 1976, Certain Reporter's Comments In Regard To Various Provisions Of The South Carolina Probate Code |
|In, VERSION: Adopted). Westlaw: 2011 SC S.B. 213 (NS); Web: South Carolina Legislature. |
|South Dakota. Trust Provisions Amendments; Certificate of Trust Changes. South Dakota has passed legislation that revises various|
|trust provisions, including the liability of excluded fiduciaries, trust protectors, trust advisors, and changes to the statutory|
|certificate of trust form. (2011 South Dakota House Bill No. 1155, South Dakota Eighty-Sixth Legislative Assembly, 2011; Title: |
|Revise Various Trust Provisions., VERSION: Adopted). Westlaw: 2011 SD H.B. 1155 (NS); Web: South Dakota Legislature. |
|Utah. Definitions Used For Governing Instruments In Probate. Utah has passed legislation that clarifies definitions used for |
|governing instruments in probate. The act includes specific cross-references to existing definitions for governing instruments |
|and provides how specific terms used in a governing instrument control how property is divided. (2011 Utah Senate Bill No. 104, |
|Utah Fifty-Ninth Legislature - 2011 General Session; Title: Probate Law Amendments, VERSION: Adopted). Westlaw: 2011 UT S.B. 104 |
|(NS); Web: Utah Legislature. |
| |
|Estate Planning (Generally) |
| |
|ARTICLES |
|A Beneficiary Serving as Trustee May Affect Asset Protection. Kenneth W. Kingma. (Estate Planning, April, 2011). Westlaw: 38 |
|ESTPLN 22. |
|Chronic Illness; Practical Planning and Drafting, Part 2. Martin M. Shenkman, Joshua Rubenstein. (March/April, 2011, Probate and |
|Property). Westlaw: .25-APR Prob. & Prop. 48. |
|Control at What Cost? Annual Exclusion Gifts and Present Interests. Hugh F. Drake. (Probate and Property, March/April, 2011). |
|Westlaw: 25-APR Prob. & Prop. 36. |
|Defining 'Descendants': Science Outpaces Traditional Heirship. David Shayne and Christine Quigley. (Estate Planning, April, |
|2011). Westlaw: 38 ESTPLN 14. |
|Estate Planning and Title Insurance. Brian J. Jereb. (Ohio Probate Law Journal, January/February 2011). Westlaw: 21 No. 3 Ohio |
|Prob. L.J. 5. |
|From Zoom to Doom? Risks of Do-It-Yourself Estate Planning. Wendy S. Goffe and Rochelle L. Haller. (Estate Planning, April, |
|2011). Westlaw: 38 ESTPLN 27. |
|Specialization in Estate Planning, Trust and Probate Law. Donald G. Schweller. (Ohio Probate Law Journal, January/February 2011).|
|Westlaw: 21 No. 3 Ohio Prob. L.J. 6. |
|Stress Test Life Insurance Now to Avoid Future Heartache. Richard M. Weber and Gordon A. Schalle.r (Estate Planning, April, |
|2011). Westlaw: 38 ESTPLN 3. |
| |
|LEGISLATION |
|Montana. Uniform Power Of Attorney Act Adopted. Montana has passed legislation revising laws relating to powers of attorney, |
|including adopting the Uniform Power Of Attorney Act to replace the Statutory Form Power Of Attorney Act. The law also provides |
|causes of actions and penalties for the intentional dissipation of an estate through the use of a power of attorney. (2011 |
|Montana House Bill No. 374, Montana Sixty-Second Legislature - 2011 Session; Title: Implement The Uniform Power Of Attorney Model|
|Law, VERSION: Enrolled). Westlaw: 2011 MT H.B. 374 (NS); Web: Montana Legislature. |
|West Virginia. Amendments to Trusts and Estates Provisions; Adopting West Virginia Uniform Trust Code. West Virginia has passed |
|legislation relating generally to estates and trusts and their administration, and providing that certain provisions of current |
|law to have no effect after specified date. The act changes names of certain articles of existing code; provides for the |
|creation, administration, revision and termination of trusts; provides for trustees, powers and duties of trustees and |
|substitution of trustees; provides for distribution of trust assets; specifies powers and certain restrictions on powers of |
|fiduciaries; amends the Uniform Prudent Investor Act; and modernizes language of certain existing sections of code and deleting |
|obsolete language. The law adopts the West Virginia Uniform Trust Code; providing general provisions and definitions; judicial |
|proceedings; representation of trusts; creation, validity, modification and termination of trusts; creditor's claims; spendthrift|
|trusts, discretionary trusts and revocable trusts; the office of trustee; duties and powers of trustees; liability of trustees |
|and rights of persons dealing with trustee; and various miscellaneous provisions for trusts and trustees. In addition, there is a|
|delayed effective date for West Virginia Uniform Trust Code and providing rules for application of that date. (2011 West Virginia|
|House Bill No. 2551, West Virginia Eightieth Legislature - Regular Session, 2011; Title: Relating Generally To Estates And Trusts|
|And Their Administration, VERSION: Enrolled). . Westlaw: 2011 WV H.B. 2551 (NS); Web: West Virginia Legislature. |
| |
|Generation-Skipping Transfer Tax |
| |
|ARTICLES |
|BNA. Attorneys Request IRS Guidance on Automatic Allocation of GST after 2010 Tax Relief Act Assigns Zero Tax Rate for 2010. The |
|2010 Tax Relief Act reinstated the generation skipping transfer tax assigning it a zero percent tax rate for 2010. This has led |
|to questions by practitioners as to whether transferors who make a direct skip in 2010 will have to elect out of the automatic |
|allocation of GST exemption by the gift tax return due date of April 18, which can be extended until Oct. 15, or if the return |
|due date is automatically extended until Sept. 19, said Carol Harrington, a partner with McDermott, Will & Emery in an interview |
|with BNA on March 16. According to BNA’s report, estate tax attorneys have asked the Treasury Department to issue formal guidance|
|that will clarify that the GST Tax exemption will not be automatically allocated where there can be no benefit. Westlaw: 052 DER |
|G-4, 2011, 2011 WL 898425 (March 17, 2011). |
| |
|IRS DECISIONS, REGULATIONS, AND GUIDANCE |
|IRS. Section 9100 - Extension of Time for Making Certain Elections. The IRS granted donor and his spouse a 120-day extension to |
|allocate his and her respective GST exemptions to one-half of the entire value of the amounts transferred to five irrevocable |
|trusts, each for the benefit one of their children and that child's issue after the accountant, who prepared the Forms 709, |
|failed to report the transfers to the trusts and to allocate their GST exemptions to the transfers. Westlaw: PLR 201110004, 2011 |
|WL 838746 (March 11, 2011); Web: PLR 201110004, IRS Written Determinations (March 11, 2011). |
|IRS. Section 9100 - Extension of Time for Making Certain Elections. The IRS granted decedent's estate a 120-day extension to |
|allocate decedent's GST exemption to transfers to fifteen irrevocable trusts, each created by the decedent during life for the |
|benefit of one of decedent’s or one of decedent’s brothers’ children or that child’s issue after decedent's accountant failed to |
|prepare and file Forms 709. Westlaw: PLR 201110005, 2011 WL 838747 (March 11, 2011); Web: PLR 201110005, IRS Written |
|Determinations (March 11, 2011). |
|IRS. Section 2601 - Tax on Generation Skipping Transfers. The IRS ruled that the proposed division and modifications of an |
|irrevocable trust created by decedent for his two children and grandchildren or of successor trusts, one for the benefit of each |
|child’s family line, will not cause the trusts to lose their exempt status or cause any distribution from or termination of any |
|interests in the trusts to be subject to GST tax under I.R.C. § 2601. The actions will also not result in a transfer by any trust|
|beneficiary that will be subject to federal gift tax under IRC § 2501. Furthermore, no property of any of the trusts will |
|includible in the gross estate of any trust beneficiary under IRC § 2036, IRC § 2037, or IRC § 2038. Westlaw: PLR 201109004, 2011|
|WL 759587 (March 4, 2011); Web: PLR 201109004, IRS Written Determinations (March 4, 2011). |
|IRS. Section 9100 - Extension of Time for Making Certain Elections. The IRS granted taxpayers a 120-day extension to allocate |
|grantor's GST exemption and spouse's GST exemption to transfers to irrevocable trust which was then divided into two equal |
|shares, one for the benefit of each of their two daughters and her descendants after the attorney reviewing the couple’s estate |
|plan noticed that the CPA who prepared the gift tax returns failed to make the proper allocations on the Forms 709. Westlaw: PLR |
|201109005, 2011 WL 759588 (March 4, 2011); Web: PLR 201109005, IRS Written Determinations (March 4, 2011). |
|IRS. Section 9100 - Extension of Time for Making Certain Elections. In two PLRs, the IRS granted the executor of decedent's |
|estate and his spouse a 120-day extension to allocate their GST exemption to transfers to four trusts created by the couple for |
|the benefit of each of their four children and issue and to report the correct amount of their GST exemption allocated to a |
|second set of transfers under the automatic allocation rules of I.R.C. § 2632(c)(1) after they failed to file Form 709 to report |
|the first transfers, and the accountant who filed their Forms 709 for the second transfers mistakenly allocated less GST |
|exemption than should have been reported under the automatic allocation rules. Westlaw: PLR 201109009, 2011 WL 759592 and PLR |
|201109010, 2011 WL 759593 (March 4, 2011); Web: PLR 201109009 and PLR 201109010, IRS Written Determinations (March 4, 2011). |
| |
|LEGISLATION |
|Virginia. Formula Clauses Referring to Federal Estate and Generation-Skipping Transfer Tax Laws. Virginia has passed legislation |
|relating to formula clauses referring to federal estate and generation-skipping transfer tax laws in wills and trusts. The Act |
|amends a section added to the Code during the 2010 Session that was designed to address the consequences of the anticipated |
|repeal of the federal estate and generation-skipping transfer taxes with respect to estates and taxable transfers occurring in |
|2010, and the retroactive reinstatement of such taxes as well as other changes made to federal tax law. The act provides that the|
|decision by a decedent's personal representative not to have the estate tax apply to a decedent's estate in 2010 does not affect |
|the meaning of formula clauses for calculating transfers or devises based on federal estate or generation-skipping transfer tax |
|law contained in a will or other instrument. In addition, the legislation provides that the fiduciaries or beneficiaries of an |
|estate may petition the court to determine how the decedent would want such formula clauses construed, and may also enter into a |
|nonjudicial agreement regarding the construction of such clauses. The act is effective immediately. (2010 Virginia Senate Bill |
|No. 1423, Virginia 2011 Regular Session; Title: Wills & Trusts; Formula Clauses Referring To Federal Estate & Generation-Skipping|
|Transfer Tax Law., VERSION: Enrolled). Westlaw: 2010 VA S.B. 1423 (NS); Web: Virginia Legislature. |
| |
|Health Care |
| |
|ARTICLES |
|Chronic Illness; Practical Planning and Drafting, Part 2. Martin M. Shenkman, Joshua Rubenstein. (March/April, 2011, Probate and |
|Property). Westlaw: .25-APR Prob. & Prop. 48. |
|Complying with the Centers for Medicare & Medicaid Services Visitation Rule. Fay A. Rozovsky. (Journal of Health Care Compliance,|
|March/April, 2011). Westlaw: 13 No. 2 J. Health Care Compliance 15. |
|Rhetorical Federalism: the Role of State Resistance in Health Care Decision-Making. Elizabeth Weeks Leonard. (Journal of Law, |
|Medicine and Ethics, Spring, 2011). Westlaw: 39 J.L. Med. & Ethics 73. |
| |
|LEGISLATION |
|Virginia. Health Records; Disclosure Requirements. Virginia has passed legislation which clarifies that a health care entity is |
|required to share, at the request of the subject of the records, health records with other health care entities, in the format |
|requested by the individual in the manner authorized by the federal law unless (1) the electronic format is not reasonably |
|available without additional cost to the health care entity, (2) the records would be subject to modification in the format |
|required, or (3) the health care entity determines that the integrity of the records could be compromised in the electronic |
|format requested. (2010 Virginia House Bill No. 2515, Virginia 2011 Regular Session; Title: Health Records; Disclosure |
|Requirements., VERSION: Enrolled). Westlaw: 2010 VA H.B. 2515 (NS); Web: 2010 Virginia House Bill No. 2515. |
|Virginia. Electronic Health Records. Virginia has passed legislation which provides that health records, disclosure of which has |
|been authorized by a patient or as otherwise allowed by state law, are to be made available electronically but only to the extent|
|and in the manner authorized by federal law. The act also provides that a health care entity shall not be obligated to provide |
|records in the electronic format requested if (i) the electronic format is not reasonably available without additional cost to |
|the health care entity, (ii) the records would be subject to modification in the format requested, or (iii) the health care |
|entity determines that the integrity of the records could be compromised in the electronic format requested. (2010 Virginia House|
|Bill No. 2292, Virginia 2011 Regular Session; Title: Health Records; Electronic Access., VERSION: Adopted). Westlaw: 2010 VA H.B.|
|2292 (NS); Web: Virginia Legislature. |
| |
|Interest |
| |
|IRS DECISIONS, REGULATIONS, AND GUIDANCE |
|IRS. Federal Rates; Adjusted Federal Rates; Adjusted Federal Long-Term Rate and the Long-Term Exempt Rate–April 2011. Rev. Rul. |
|2011-10 provides various prescribed rates for federal tax purposes for April 2011. Westlaw: Rev. Rul. 2011-10, 2011 WL 924078 |
|(March 18, 2011); Web: Rev. Rul. 2011-10 (March 18, 2011). |
| |
|Irrevocable Trusts--See Trusts (Generally) |
| |
|Probate--See Estate/Trust Administration and Probate |
| |
| |
|Retirement |
| |
|IRS DECISIONS, REGULATIONS, AND GUIDANCE |
|IRS. Section 408 - Individual Retirement Accounts. The IRS waived the 60-day rollover requirement with respect to a distribution |
|from taxpayer’s IRA after an employee of the taxpayer’s bank advised taxpayer that the retirement funds could be removed for |
|90-days without penalty. Westlaw: PLR 201110014, 2011 WL 838755 (March 11, 2011); Web: PLR 201110014, IRS Written Determinations |
|(March 11, 2011). |
|IRS. Section 408 - Individual Retirement Accounts. The IRS granted taxpayer a 60-day extension to contribute a distribution from |
|her deceased husband’s IRA to a Rollover IRA due to an error by her financial advisor causing the funds to be deposited into a |
|non-IRA account. Westlaw: PLR 201110018, 2011 WL 838759 (March 11, 2011); Web: PLR 201110018, IRS Written Determinations (March |
|11, 2011). |
| |
|OTHER |
|U.S. Tax Court. Court Denies Taxpayer Deduction for IRA Contribution. On March 14, the U.S. Tax Court concluded that Robert |
|Kobell was not entitled to a deduction taken on his 2005 income tax return for a contribution to his IRA. Per IRC Sec. 219(b)(1),|
|(5) the deduction cannot exceed the “lesser of the deductible amount or an amount equal to the taxpayer's compensation includable|
|in gross income.” Kobell's 2005 income was comprised of Social Security benefits, which are not considered compensation, and |
|dividends and interest, which also are not compensation unless taxpayer is a dealer in stocks or securities and the amounts are |
|received in the course of his or her trade or business. Westlaw: Kobell v. C.I.R., T.C. Memo. 2011-66, 2011 WL 920298, U.S.Tax |
|Ct., 2011 (March 17, 2011); Web: Kobell v. C.I.R., T.C. Memo. 2011-66, U.S.Tax Ct., 2011 (March 17, 2011). |
| |
|Same Sex Marriages; Civil Unions; Domestic Partnerships |
| |
|ARTICLES |
|Advising Same-Sex Couples. Raymond Prather. (GPSolo, March, 2011). Westlaw: 28 No. 2 GPSolo 14. |
|Common Law Same-Sex Marriage. Peter Nicolas. (Connecticut Law Review, February, 2011). Westlaw: 43 Conn. L. Rev. 931. |
|The Defense of Marriage Act (DOMA) and California's Struggle with Same-Sex Marriage. John Rogers. (Regent University Law Review, |
|2010-2011). Westlaw: 23 Regent U. L. Rev. 97. |
|The Effects of Legally Recognizing Same-Sex Unions on Health and Well-Being. Holning Lau, Charles Q. Strohm. (Law and Inequality:|
|A Journal of Theory and Practice, Winter 2011). Westlaw: 29 Law & Ineq. 107. |
|A Quest for Fair and Balanced: the Supreme Court, State Courts, and the Future of Same-Sex Marriage Review After Perry. Chase D. |
|Anderson. (Duke Law Journal, March, 2011). Westlaw: 60 Duke L.J. 1413; Web: Duke Law Journal. |
|Same-Sex Couples and Consumer Credit Rights. Catherine M. Brennan. (Banking & Financial Services Policy Report, March, 2011). |
|Westlaw: 30 No. 3 Banking & Fin. Services Pol'y Rep. 23. |
|Searching for Harm: Same-Sex Marriage and the Well-Being of Children. Courtney G. Joslin. (Harvard Civil Rights-Civil Liberties |
|Law Review, Winter 2011). Westlaw: 46 Harv. C.R.-C.L. L. Rev. 81; Web: Harvard Civil Rights-Civil Liberties Law Review. |
| |
|Small and Mid-Size Law Firm Practice |
| |
|ARTICLES |
|Attorney Fees: How to Avoid a Conflict with Your Client. Mark A. Neubauer. (GPSolo, March, 2011). Westlaw: 28 No. 2 GPSolo 16. |
|Despite Decline of Traditional Media, Opportunities Abound. Nicholas Gaffney. (Marketing the Law Firm, March, 2011). Westlaw: 26 |
|No. 11 Marketing L. Firm 1. |
|Esignatures Support Lower Overhead Costs and Better Client Service. Andrew Flusche. (LJN's Legal Tech Newsletter, March, 2011). |
|Westlaw: 27 No. 11 LJN's Legal Tech Newsl. 7. |
|The Life and Health Insurance Guaranty System. Peter G. Gallanis. (GPSolo, March, 2011). Westlaw: 28 No. 2 GPSolo 34. |
|Marketing from a Young Partners Perspective. Kendyl Hanks and Craig Unterberg. (Marketing the Law Firm, March, 2011). Westlaw: 26|
|No. 11 Marketing L. Firm 5. |
|A Mouse That Rocks: the Smartfish Laser Mouse Keeps Your Hand on the Move. (Lawyer's PC, April 1, 2011). Westlaw: 28 No. 13 Law. |
|PC 1. |
|Online False Advertising Risks. Scott J. Slavick. (GPSolo, March, 2011). Westlaw: 28 No. 2 GPSolo 10. |
|Social Networking Initiatives. How LinkedIn Can Net Women Lawyers More Work. Debra Forman. (Law Firm Partnership and Benefits |
|Report, March, 2011). Westlaw: 17 No. 1 Law Firm Partnership & Benefits Rep. 3. |
|‘Tell Me More’. Answering and Profiting from the Most Important Question in Business. Steve Hughes . (Marketing the Law Firm, |
|March, 2011). Westlaw: 26 No. 11 Marketing L. Firm 1. |
|If We Could Do It Over Again ... Ten Technology Commandments for Opening a New Office. Audrey Rubin. (LJN's Legal Tech |
|Newsletter, March, 2011). Westlaw: 27 No. 11 LJN's Legal Tech Newsl. 1. |
| |
|OTHER |
|U.S. Senate. Vote to Repeal Expansion of Form 1099 Reporting Postponed until after March Recess. On March 17, Senate Majority |
|Leader Reid announced that the Senate would postpone a vote on S.AMDT.161 repealing the expansion of Form 1099 reporting |
|requirements until after the March recess. The expanded requirements cover payments made to corporations, payments for property |
|and other gross proceeds, and rental property expense payments, and for other purposes. Westlaw: 053 DER G-2, 2011, 2011 WL |
|914669 (March 18, 2011). |
|U.S. Senate. Amendment to Small Business Till Would Repeal Expanded 1099 Reporting. On March 15, Sen. Mike Johanns (R-Neb.) |
|offered an amendment (S. Amdt. 161) to a small business innovation bill (S. 493) that would repeal the expanded information |
|reporting that requires businesses and landlords to issue a Form 1099 for payments to corporations for goods and services that |
|exceed $600 per year to each vendor. Johanns proposes to pay for repeal using an adjustment to the premium assistance tax credits|
|from the 2010 health care law (Pub. L. No. 111-148) that was previously passed by the House. Westlaw: S.AMDT.161, 2011 WL 898453 |
|(March 17, 2011); Web: S.AMDT.161, 112th Congress (March 15, 2011) |
| |
|Special Needs Trusts; Guardianships |
| |
|ARTICLES |
|Special Needs Trusts: Employing a Parent as Caregiver. Thomas D. Begley, Jr., and Andrew H. Hook. (Estate Planning, April, 2011).|
|Westlaw: 38 ESTPLN 35. |
| |
|LEGISLATION |
|Montana. Uniform Power Of Attorney Act Adopted. Montana has passed legislation revising laws relating to powers of attorney, |
|including adopting the Uniform Power Of Attorney Act to replace the Statutory Form Power Of Attorney Act. The law also provides |
|causes of actions and penalties for the intentional dissipation of an estate through the use of a power of attorney. (2011 |
|Montana House Bill No. 374, Montana Sixty-Second Legislature - 2011 Session; Title: Implement The Uniform Power Of Attorney Model|
|Law, VERSION: Enrolled). Westlaw: 2011 MT H.B. 374 (NS); Web: Montana Legislature. |
|Utah. Updating Terms Relating To Persons With A Disability. Utah has passed legislation that, to the extent possible, replaces |
|outdated terms relating to persons with a disability with updated terms. The act, except where impracticable due to language used|
|in federal law, uniform law, interstate compacts, or case law, replaces the term “mental retardation,” and its variations, with |
|“intellectual disability”; “disabled person” with “person with a disability”; “mentally ill person” with “person with a mental |
|illness”; “paraplegic” with “person with paraplegia"; “guilty and mentally ill” with “guilty with a mental illness”; “guilty of a|
|lesser offense and mentally ill” with “guilty of a lesser offense with a mental illness”; and “crippled” with “disability”. (2011|
|Utah House Bill No. 230, Utah Fifty-Ninth Legislature - 2011 General Session, UTAH BILL TEXT). Westlaw: 2011 UT H.B. 230 (NS); |
|Web: Utah Legislature. |
|Virginia. Real Estate Tax Relief For The Elderly And Permanently And Totally Disabled. Virginia has passed legislation providing |
|for real estate tax relief for the elderly and permanently and totally disabled. The act authorizes local governments to |
|establish annual income or financial worth limitations as a condition of eligibility for real property tax relief for the elderly|
|and permanently and totally disabled. The law implements the amendment to Article X, Section 6 (b) of the Constitution of |
|Virginia that limits the General Assembly's ability to establish the limitations and allows the General Assembly to authorize |
|local governments to establish the limitations. (2010 Virginia House Bill No. 2278, Virginia 2011 Regular Session; Title: Real |
|Estate Tax; Relief For Elderly And Permanently And Totally Disabled., VERSION: Adopted). Westlaw: 2010 VA H.B. 2278 (NS); Web: |
|Virginia Legislature. |
|West Virginia. Financial Exploitation of the Elderly, Protected Persons and Incapacitated Adults. West Virginia has passed |
|legislation relating to crimes against the elderly, protected persons or incapacitated persons. The law addresses financial |
|exploitation of the elderly, protected persons and incapacitated adults in misappropriating or misusing assets; permits the |
|prosecutor to cumulate amounts or values when charging; permits banking institutions and others to report suspected financial |
|exploitation to law-enforcement authorities and other entities; permits financial institutions to disclose suspicious activity |
|reports or currency transaction reports to the prosecuting attorney; provides civil immunity for reporting; orders restitution; |
|and establishes the criminal penalty of larceny. (2011 West Virginia House Bill No. 2362, West Virginia Eightieth Legislature - |
|Regular Session, 2011; Title: Increasing Penalties For Financial Exploitation Of An Elderly Person Or Incapacitated Adult, |
|VERSION: Enrolled). Westlaw: 2011 WV H.B. 2362 (NS); Web: West Virginia Legislature. |
| |
|Trusts (Generally) |
| |
|ARTICLES |
|Designating the Application of Another State's Laws in a Trust. The Private Clients, Trusts and Estates Group of Schiff Hardin |
|LLP. (Estate Planning, April, 2011). Westlaw: 38 ESTPLN 40. |
|A Beneficiary Serving as Trustee May Affect Asset Protection. Kenneth W. Kingma. (Estate Planning, April, 2011). Westlaw: 38 |
|ESTPLN 22. |
|Disinheritance of Minor Children: a Proposal to Amend the Uniform Probate Code. Jacqueline Asadorian. (Boston College Third World|
|Law Journal, Winter, 2011). Westlaw: 31 B.C. Third World L.J. 101. |
|Specialization in Estate Planning, Trust and Probate Law. Donald G. Schweller. (Ohio Probate Law Journal, January/February 2011).|
|Westlaw: 21 No. 3 Ohio Prob. L.J. 6. |
| |
|LEGISLATION |
|Kentucky. Non-Kentucky Bank or Trust Company as Fiduciary. Kentucky has passed legislation that allows a non-Kentucky bank or |
|trust company to act as a fiduciary. In particular, the act amends KRS 395.005 to allow a bank or trust company organized under |
|the laws of a state other than Kentucky to be appointed as fiduciary for matters of descent, will, and administration to the |
|extent permitted pursuant to KRS 286.3-920(6) and this Act; amends KRS 286.3-010 to establish definitions for “out-of-state trust|
|company” and “trust representative office”; creates a new section of Subtitle 3 of KRS Chapter 286 to authorize Kentucky state |
|trust companies to have trust offices and trust representative offices in Kentucky as well as in other states to the extent the |
|reciprocal state's laws permit a Kentucky trust company to establish an office in the foreign state; establishes requirements for|
|a Kentucky state trust company to establish a trust office or trust representative in Kentucky or in another state; creates a new|
|section of Subtitle 3 of KRS Chapter 286 to authorize out-of-state trust companies to have trust offices and trust representative|
|offices in Kentucky to the extent the out-of-state trust company's home state allows Kentucky trust companies to establish trust |
|offices or trust representative offices in the foreign state; establishes requirements for an out-of-state trust company to |
|establish a trust office or trust representative in Kentucky; amend KRS 286.3-450 to allow the commissioner of the Department of |
|Financial Institutions to enter into cooperative, coordinating, and information-sharing agreements and agreements for joint |
|examinations and joint enforcement actions with other supervisory agencies having concurrent authority over trust offices and |
|trust representative offices; and amends KRS 286.3-290 to clarify that a branch office of an out-of-state bank may conduct |
|fiduciary activities authorized under Kentucky law for banks, provided that a branch office of a Kentucky bank is permitted to |
|engage in substantially similar activities in the out-of-state bank's host state. (2011 Kentucky House Bill No. 342, Kentucky |
|2011 Regular Session; Title: An Act Relating To Financial Matters., VERSION: Adopted). Westlaw: 2011 KY H.B. 342 (NS); Web: |
|Kentucky Legislature. |
|Michigan. Rule Against Perpetuities For Trust Property; Amendment. Michigan has passed legislation amending statutes that certain|
|personal property held in trust is excluded from the rule against perpetuities and similar rules that potentially affect the |
|duration of a trust (MCL 554.94). The act further defines the property exempt from the rule. (2011 Michigan Senate Bill No. 23, |
|Michigan Ninety-Sixth Legislature - Regular Session of 2011; Title: Probate; Trusts; Personal Property Trust Perpetuities Act; |
|Limit Application To Certain Property., VERSION: Adopted). Westlaw: 2011 MI S.B. 23 (NS); Web: Michigan Legislature. |
|Virginia. Inter Vivos QTIP Trusts. Virginia has passed legislation that provides when a donor spouse establishes a QTIP |
|(qualified terminable interest property) trust for his or her spouse which effectively gives the donee spouse a life estate in |
|the trust property or an inter vivos power of appointment marital deduction trust shall not have the trust property included in |
|the donor spouse's estate for estate tax purposes. (2010 Virginia Senate Bill No. 1072, Virginia 2011 Regular Session; Title: |
|Inter Vivos QTIP Trusts; If Established By Donor Spouse Not To Be Included In Estate., VERSION: Enrolled). Westlaw: 2010 VA S.B. |
|1072 (NS); Web: Virginia Legislature. |
|Virginia. Out-of-state Trust Institutions as Fiduciaries. Virginia has passed legislation that allows certain out-of-state trust |
|institutions to act in fiduciary capacities, including trustee, executor, and administrator. The law authorizes any national |
|banking association that is supervised and regulated by the federal Comptroller of the Currency and is authorized by the |
|Comptroller of the Currency to act as trustee, as executor, as administrator, or in another fiduciary capacity in the |
|Commonwealth, to engage in the trust business in the Commonwealth. This codifies an opinion of the state Attorney General that a |
|statutory provision barring out-of-state trust institutions without an office in the Commonwealth from engaging in trust business|
|as preempted by § 92a of the National Bank Act to the extent it applies to national banks that are supervised and regulated by |
|the Comptroller of the Currency. (2010 Virginia House Bill No. 2366, Virginia 2011 Regular Session; Title: Out-Of-State Trust |
|Institutions; Any National Bank To Serve As Trustee Without Office In State., VERSION: Adopted). Westlaw: 2010 VA H.B. 2366 (NS);|
|Web: Virginia Legislature. |
|Virginia. Form of Deeds When a Trust is the Grantor or Grantee. Virginia has passed legislation regarding the form of deeds when |
|a trust is the grantor or grantee of a deed. When a trust is the grantor or grantee of a deed, the law provides that the deed is |
|to contain the names of the trust's trustees serving at the time the deed was made. (2010 Virginia House Bill No. 2507, Virginia |
|2011 Regular Session; Title: Deeds And Deeds Of Trust; When Trust Is Grantor Or Grantee, It Shall Contain Certain Names., |
|VERSION: Adopted). Westlaw: 2010 VA H.B. 2507 (NS); Web: Virginia Legislature. |
|Virginia. Land Trusts; Successor Trustees. Virginia has passed legislation regarding land trusts and successor trustees. The Act |
|provides that where a land trust has been created by the recordation of a deed of conveyance to a trustee, and the trustee named |
|in the deed is unable to serve, the beneficiaries of the trust, by majority decision, are to name a successor trustee. If the |
|beneficiaries cannot be identified, or cannot agree on a successor trustee, the circuit court where the deed was recorded will |
|name the successor trustee. The name and address of the successor trustee shall be recorded with the clerk. (2010 Virginia House |
|Bill No. 2133, Virginia 2011 Regular Session; Title: Land Trusts; Trustee Named In Deed Is Unable To Serve, Beneficiaries Shall |
|Name A Successor Trustee., VERSION: Adopted). Westlaw: 2010 VA H.B. 2133 (NS); Web: Virginia Legislature. |
|Virginia. Subdivision Of A Lot Held In Trust For Conveyance To A Family Member. Virginia has passed legislation regarding the |
|subdivision of a lot held in trust for conveyance to a family member. The act authorizes localities to provide for subdivision of|
|a lot for conveyance to a family member if the land is held in trust. All trust beneficiaries must be immediate family members |
|and must agree that the property should be subdivided. Additionally, all beneficiaries must agree to place a restrictive covenant|
|on the subdivided property that would prohibit the transfer of the property to a nonmember of the immediate family for a period |
|of 15 years. A locality may provide exceptions to this 15-year time period but must execute a writing reflecting such |
|modification. (2010 Virginia Senate Bill No. 873, Virginia 2011 Regular Session; Title: Subdivision Of Lot; Localities To Provide|
|For Conveyance To Family Member If Land Is Held In Trust., VERSION: Adopted). Westlaw: 2010 VA S.B. 873 (NS); Web: Virginia |
|Legislature. |
|Virginia. Formula Clauses Referring to Federal Estate and Generation-Skipping Transfer Tax Laws. Virginia has passed legislation |
|relating to formula clauses referring to federal estate and generation-skipping transfer tax laws in wills and trusts. The Act |
|amends a section added to the Code during the 2010 Session that was designed to address the consequences of the anticipated |
|repeal of the federal estate and generation-skipping transfer taxes with respect to estates and taxable transfers occurring in |
|2010, and the retroactive reinstatement of such taxes as well as other changes made to federal tax law. The act provides that the|
|decision by a decedent's personal representative not to have the estate tax apply to a decedent's estate in 2010 does not affect |
|the meaning of formula clauses for calculating transfers or devises based on federal estate or generation-skipping transfer tax |
|law contained in a will or other instrument. In addition, the legislation provides that the fiduciaries or beneficiaries of an |
|estate may petition the court to determine how the decedent would want such formula clauses construed, and may also enter into a |
|nonjudicial agreement regarding the construction of such clauses. The act is effective immediately. (2010 Virginia Senate Bill |
|No. 1423, Virginia 2011 Regular Session; Title: Wills & Trusts; Formula Clauses Referring To Federal Estate & Generation-Skipping|
|Transfer Tax Law., VERSION: Enrolled). Westlaw: 2010 VA S.B. 1423 (NS); Web: Virginia Legislature. |
|West Virginia. Amendments to Trusts and Estates Provisions; Adopting West Virginia Uniform Trust Code. West Virginia has passed |
|legislation relating generally to estates and trusts and their administration, and providing that certain provisions of current |
|law to have no effect after specified date. The act changes names of certain articles of existing code; provides for the |
|creation, administration, revision and termination of trusts; provides for trustees, powers and duties of trustees and |
|substitution of trustees; provides for distribution of trust assets; specifies powers and certain restrictions on powers of |
|fiduciaries; amends the Uniform Prudent Investor Act; and modernizes language of certain existing sections of code and deleting |
|obsolete language. The law adopts the West Virginia Uniform Trust Code; providing general provisions and definitions; judicial |
|proceedings; representation of trusts; creation, validity, modification and termination of trusts; creditor's claims; spendthrift|
|trusts, discretionary trusts and revocable trusts; the office of trustee; duties and powers of trustees; liability of trustees |
|and rights of persons dealing with trustee; and various miscellaneous provisions for trusts and trustees. In addition, there is a|
|delayed effective date for West Virginia Uniform Trust Code and providing rules for application of that date. (2011 West Virginia|
|House Bill No. 2551, West Virginia Eightieth Legislature - Regular Session, 2011; Title: Relating Generally To Estates And Trusts|
|And Their Administration, VERSION: Enrolled). . Westlaw: 2011 WV H.B. 2551 (NS); Web: West Virginia Legislature. |
|Wyoming. Uniform Trust Code Amendments. Wyoming has passed legislation relating to the Uniform Trust Code. The law provides for |
|the attachment of property in a trust by creditors or assignees of a holder of a power of appointment as specified; amends when a|
|creditor or assignee of a trust beneficiary may reach or attach the interest of the beneficiary in a trust; provides that a |
|married person who created a trust for his spouse is not to be treated as a settlor of the trust upon the death of his or her |
|spouse; provides that a trust instrument may not be deemed revocable because of the settlor's receipt each year of income or |
|principal from a grantor retained annuity trust or grantor retained unitrust as specified. (2011 Wyoming House Bill No. 159, |
|Wyoming Sixty First Legislature - 2011 General Session; Title: Uniform Trust Code Amendments., VERSION: Adopted). Westlaw: 2011 |
|WY H.B. 159 (NS); Web: Wyoming Legislature. |
| |
|OTHER |
|U.S. District Court. Court Grants Preliminary Injunction Blocking California Pair from Promoting “Common-Law” Trusts. On March |
|11, 2011, the U.S. District Court Central District of California granted the government’s request for a preliminary injunction |
|preventing Gwenn Wycoff and Frank Ozak of California from promoting, creating or operating on, creation, and operation of |
|“abusive trusts”. According to the injunction the court found that the pair “jointly advise individuals and business operators |
|about the benefits of establishing ‘common-law’ trusts, which they claim will allow their customers to avoid the payment of |
|federal income taxes.” The activities were originally promoted via the Kenzington Fund's website, “” but in |
|2004, they began utilizing another website, “.” Westlaw: Preliminary Injunction in United States v. Wycoff, |
|2011 WL 914607 (March 18, 2011); Web: United States v. Wycoff, C.D. Cal., No. 2:10-cv-05856-JHN-PLAx (preliminary injunction |
|issued March 11, 2011). |
| |
|Wills |
| |
|LEGISLATION |
|Idaho. Intestate Succession And Wills. Idaho has passed legislation concerning intestate succession. The act amends existing law |
|relating to intestate succession and wills to revise the time frame for filing a disclaimer under certain circumstances; and to |
|remove outdated provisions. (2011 Idaho Senate Bill No. 1121, Idaho Sixty-First Idaho Legislature, First Regular Session - 2011; |
|Title: Intestate Succession, Wills, VERSION: Adopted). Westlaw: 2011 ID S.B. 1121 (NS); Web: Idaho Legislature. |
|Virginia. Formula Clauses Referring to Federal Estate and Generation-Skipping Transfer Tax Laws. Virginia has passed legislation |
|relating to formula clauses referring to federal estate and generation-skipping transfer tax laws in wills and trusts. The Act |
|amends a section added to the Code during the 2010 Session that was designed to address the consequences of the anticipated |
|repeal of the federal estate and generation-skipping transfer taxes with respect to estates and taxable transfers occurring in |
|2010, and the retroactive reinstatement of such taxes as well as other changes made to federal tax law. The act provides that the|
|decision by a decedent's personal representative not to have the estate tax apply to a decedent's estate in 2010 does not affect |
|the meaning of formula clauses for calculating transfers or devises based on federal estate or generation-skipping transfer tax |
|law contained in a will or other instrument. In addition, the legislation provides that the fiduciaries or beneficiaries of an |
|estate may petition the court to determine how the decedent would want such formula clauses construed, and may also enter into a |
|nonjudicial agreement regarding the construction of such clauses. The act is effective immediately. (2010 Virginia Senate Bill |
|No. 1423, Virginia 2011 Regular Session; Title: Wills & Trusts; Formula Clauses Referring To Federal Estate & Generation-Skipping|
|Transfer Tax Law., VERSION: Enrolled). Westlaw: 2010 VA S.B. 1423 (NS); Web: Virginia Legislature. |
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|Version 2011-1 of Trust Plus and TrusTerminator has been released and is ready for download from the Software Updates area of |
|Members Only at . With this release you will find several new, exciting content and feature additions and |
|enhancements. We hope you will find the enhancements in 2011-1 to be welcome additions to your estate planning practice! |
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|An overview of the enhancements in Version 2011-1: |
|Updated options and language for the 2010 Tax Relief Act. There are changes in both Trust Plus and TrusTerminator. An online |
|learning program on the new tax options in Trust Plus is available on Members Only. |
|A new IRA trust module has been added in Trust Plus. |
|QTIP/Marital Trust – Expanded options for a surviving spouse to serve as a trustee have been added. |
|There is an updated Non-Statutory Power of Attorney Bond Selection Screen |
|A new Find a Name feature in both Trust Plus and TrusTerminator allow you to find a name and address you have used in any of your|
|sessions and create a letter or email. |
|Updates to substantive legal help and state statutory forms (including California's Preliminary Change of Ownership form and a |
|trustee's duty to inform and report) have been made. |
|TrusTerminator has a new Register report (for transfers and transactions between a trust's asset accounts). |
|Many customization features for the Register and Trust Accounting reports in TrusTerminator have been added. |
|TrusTerminator reports can now be directly accessed via a new button on the Main menu bar. |
|There are updated drafting checklists incorporating new tax planning options in the revocable trust and will checklists and a new|
|IRA Trust checklist. |
|There are updated substantive articles in Members Only reflecting the 2010 Tax Relief Act and other changes. |
|Help files for Trust Plus and TrusTerminator have been updated. |
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|In addition, support is always just a phone call away using the following numbers: |
|License activations - Customer Technical Support, 1-800-366-1730 (option 1) |
|Questions about your West account or requests to add/remove Members Only or Listserve access - Customer Service, 1-800-366-1730 |
|(option 2) |
|Content questions and questions on how to use the software - Reference Attorneys, 1-800-277-9378 (option 3) |
|Technical software problems and questions (installation, networking, technical errors) - Customer Technical Support, |
|1-800-366-1730 (option 4) |
|Sales of supplies (Estate Organizer Binders, client booklets, etc.) - Inside Sales, 1-800-366-1730 (option 5) |
|To schedule training on using the software - Telephone Training, 1-800-328-0109 (option 1) |
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