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Estate Planning Estate Planning: Wills and Trusts: The Basics Estate Planning Webinar Series • Powers of Attorney & Medical Directives • Why I Should Have An Estate Plan • Wills and Trusts - The Basics: Wills and Trusts, the differences and execution requirements. The webinar will also provide an overview as to why a trust may be necessary. • All presentations can be found at www.brouse.com 2 Estate Planning Blog For additional information, see https://www.brouse.com/trusts-estates-blog 3 Disclaimer • Any opinions offered are our own and not those of Brouse McDowell LPA. This presentation is provided for general informational and educational purposes only. No information contained in this presentation is to be construed as legal advice. This presentation is not a contract for legal advice and does not establish an attorney-client relationship. • Entering into an attorney-client relationship is a mutual agreement, requiring the exchange of information and the execution of an engagement letter between the client and Brouse McDowell LPA. 4 INTRODUCTION Wills and Trusts: The Basics What’s Important to You? 6 Estate Planning is for people 7 Estate Planning is for property 8 You need the proper Documents 9 What Are Estate Planning Documents? -Durable Power of Attorney -Health Care Power of Attorney and Living Will -Last Will and Testament -Trust 10 WHY DO I NEED A WILL AND/OR TRUST? Essential Documents: Last Will and Testament Last Will and Testament- Your Last Will and Testament provides for the distribution of your probate assets, nomination of a guardian for your minor children and designates an Executor who is responsible for finalizing your estate. It is important to keep in mind that a Last Will and Testament only controls probate assets, which are assets that do not have a beneficiary, are not jointly owned with rights of survivorship or are not placed in trust during your life. An Executor’s duties include collecting all probate assets, paying debts, estate taxes, if any, and final expenses, preparing final tax returns, and distributing the remaining balance to the beneficiaries. 12 Essential Documents: Last Will and Testament: Signing Requirements- Signed at the end by the Testator whose signature is attested and subscribed in the conscious presence of the Testator by two or more competent and disinterested witnesses who witnessed the execution of the document by the Testator or heard the Testator acknowledge his or her signature. 13 Last Will and Testament: What Does It Do? -Memorializes your wishes as to disposition of property that is titled in your name without a beneficiary designation or joint owner with rights of survivorship -Nominates individuals to serve as guardian of your minor children -Becomes public record when it is filed with the Probate Court upon your death 14 Essential Documents: Trust Agreements Trust Agreement- There are many types of trust agreements to achieve your estate planning goals and objectives. Trusts can be irrevocable or revocable and can be used to protect and preserve your assets, to make gifts to your children without giving them control over the gift, to reduce or eliminate estate taxes, to retain assets until a beneficiary reaches a certain age or for the beneficiary’s lifetime, to provide support for disabled beneficiaries and afford privacy. Trusts are also used to implement sophisticated and complex business succession and charitable giving plans. Careful consideration should be given to the designation of your Trustee as the Trustee will oversee the trust (including the investment of trust assets) be responsible for payment of expenses, ensure that tax returns are filed, and disburse the trust assets pursuant to the terms of the trust agreement. 15 Essential Documents: Trust Agreements Signing Requirements- Signed at the end by the Settlor and, typically, the Settlor’s signature is witnessed and signed by two (2) disinterested witnesses and/or executed by the Settlor in the presence of a Notary Public. However, there is no statutory requirement in Ohio that a Settlor’s signature must be witnessed or notarized for a trust agreement or trust amendment to be effective but it will make it much more difficult to withstand challenges by an unhappy beneficiary if the Settlor’s signature is neither witnessed nor notarized. 16 Trust Agreements: What Do They Do? -Irrevocable v. revocable -Beneficiaries and ages for distributions -Creditor protection -Tax benefits -Charitable bequests 17 Wills and Trusts: Differences: Why Both Are Needed -Will disposes of assets under the jurisdiction of the probate court in a shorter length of time -Will is still necessary to designate guardian of minor children, transfer assets not in the trust, provide Executor should lawsuit (such as wrongful death claims) be necessary -Trust affords privacy, ability to provide and protect loved ones and potential tax benefits 18 Wills and Trusts: Integrating Your Estate Plan -Review current estate plan and assets -Review assets in light of objectives -Discuss objectives and wishes for your estate plan -Providing and protecting children/beneficiaries -Creditor and asset protection -Reduction or elimination of estate taxes by maximizing deductions and credits -Business succession planning -Charitable bequests 19 Property Ownership: Understanding The Different Types -Analyze and review probate v. non-probate assets -Important because beneficiary designations supersede a Last Will and Testament and/or Trust Agreement -Determine ownership, beneficiaries and how assets are titled such as sole ownership, joint with rights of survivorship, transfer on death or payable on death 20 Asset Titling: Completing The Plan -Important to ensure that your estate plan is followed -Once an estate plan is in place, the final step is to title assets in the trust or make sure the beneficiary designations on accounts, IRA’s, real property is in line with the estate plan and your objectives and goals -Recommendations on where to keep original documents -Follow up and review at least every three (3) years or when a significant change occurs in your life -your health, the health of a family member or a beneficiary changes -your assets change significantly -change in your family situation or that of a beneficiary 21 -changes in estate, gift and tax law Closing Thoughts The current coronavirus pandemic has brought to the forefront the importance of estate planning documents and implementing an estate plan. One of the most important things you can do for yourself and your family is to work with an experienced estate planning attorney to prepare an estate plan to ensure your objectives and wishes are met and provide peace of mind that your family is protected. 22 Next Up Please continue to follow us for future updates, webinars, client advisories and blogs at: www.brouse.com 23 Thank you! Lori R. Kilpeck Julie E. Firestone 600 Superior Ave. E, Suite 1600 388 S. Main Street, Suite 500 Cleveland, Ohio 44114 Akron, Ohio 44311 [email protected] [email protected] © 2020 Brouse McDowell - 1092048 24 .
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  • Uniform Trust Code
    D R A F T FOR DISCUSSION ONLY UNIFORM TRUST CODE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS MARCH 10, 2000 INTERIM DRAFT UNIFORM TRUST CODE WITHOUT PREFATORY NOTE AND COMMENTS Copyright © 2000 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporters. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal. UNIFORM TRUST CODE TABLE OF CONTENTS ARTICLE 1 GENERAL PROVISIONS AND DEFINITIONS SECTION 101. SHORT TITLE. ............................................................ 1 SECTION 102. SCOPE. ................................................................... 1 SECTION 103. DEFINITIONS. ............................................................. 1 SECTION 104. DEFAULT AND MANDATORY RULES. ...................................... 4 SECTION 105. QUALIFIED BENEFICIARIES. ............................................... 5 SECTION 106. NOTICE. .................................................................. 5 SECTION 107. COMMON LAW OF TRUSTS. ................................................ 6 SECTION 108. CHOICE OF LAW. .........................................................
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    Special Needs Trust Comment: This is an irrevocable inter vivos trust for the benefit of the settlor's disabled child. It is designed to provide the maximum benefits to the child without threatening eligibility for Medicaid or other public programs. This Form assumes immediate funding of the trust. THE ______________________ [Name of Beneficiary] IRREVOCABLE TRUST ARTICLE I. AGREEMENT This Trust Agreement is made this ________ [date] ________ day of ________ [month, year], by ________ [Name of Settlor], of ________ [address], as Settlor, and ________ [Name of Trustee] of ________ [address], as Trustee. This is an irrevocable trust for the benefit of Settlor's ________ [indicate relationship], of ________ [address]. Settlor declares that ________ [he/she] has transferred to the Trustee, without consideration, the property described in Schedule A attached to this instrument. The Trustee hereby agrees to hold that property and any other property of the trust estate, in trust, on the terms set forth in this instrument. It is Settlor's desire, by this instrument, to create an inter vivos irrevocable trust, in accordance with the laws of the State of ________ [indicate State], whereby the property placed in trust shall be managed for the benefit of ________ [Name of Beneficiary] during ________ [his/her] lifetime and distributed to the beneficiary named herein upon the death of ________ [Name of Beneficiary]. ARTICLE II. INTRODUCTION The intent of this Trust is to supplement any benefits received (or for which ________ [Name of Beneficiary] may be eligible) through or from various governmental assistance programs and not to supplant any such benefits.
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  • Trustee Liability for Spendthrift Trust Assignments
    Washington and Lee Law Review Volume 18 | Issue 2 Article 12 Fall 9-1-1961 Trustee Liability For Spendthrift rT ust Assignments Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Estates and Trusts Commons Recommended Citation Trustee Liability For Spendthrift rT ust Assignments, 18 Wash. & Lee L. Rev. 283 (1961), https://scholarlycommons.law.wlu.edu/wlulr/vol18/iss2/12 This Comment is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. i96i] CASE COMMENTS TRUSTEE LIABILITY FOR SPENDTHRIFT TRUST ASSIGNMENTS The once highly controversial issue concerning the validity of the spendthrift trust is no longer open, except in a very few American jurisdictions.' Support for the view favoring such trusts has been the argument that one owning property ought to be able to dispose of it as he sees fit, and except in a small minority of jurisdictions,2 either by statute3 or by decision, 4 a spendthrift trust has been held valid. Moreover, this particular trust device appears to be one that is becoming more and more regulated by statute.5 In fact many of the jurisdictions upholding the validity of the spendthrift trust have done so because of the validity of restraints on the alienation of equitable interests such as those appearing in spendthrift trusts.
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    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1998 The uncF tions of Trust Law: A Comparative Legal and Economic Analysis Ugo Mattei UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the Comparative and Foreign Law Commons, and the Estates and Trusts Commons Recommended Citation Ugo Mattei, The Functions of Trust Law: A Comparative Legal and Economic Analysis, 73 N.Y.U. L. Rev. 434 (1998). Available at: http://repository.uchastings.edu/faculty_scholarship/529 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Mattei Ugo Author: Ugo Mattei Source: New York University Law Review Citation: 73 N.Y.U. L. Rev. 434 (1998). Title: The Functions of Trust Law: A Comparative Legal and Economic Analysis Originally published in NEW YORK UNIVERSITY LAW REVIEW. This article is reprinted with permission from NEW YORK UNIVERSITY LAW REVIEW and New York University School of Law. THE FUNCTIONS OF TRUST LAW: A COMPARATIVE LEGAL AND ECONOMIC ANALYSIS HENRY HANSMANN* UGO MATTEI** In this Article, ProfessorsHenry Hansmann and Ugo Mattei analyze the functions served by the law of trusts and ask, first, whether the basic tools of contract and agency law could fulfill the same functions and, second, whether trust law provides benefits that are not provided by the law of corporations.
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  • The Intention of the Settlor Under the Uniform Trust Code: Whose Property Is It, Anyway?
    The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals July 2015 The nI tention of the Settlor ndeU r the Uniform Trust Code: Whose Property Is It, Anyway? Alan Newman Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Property Law and Real Estate Commons Recommended Citation Newman, Alan (2005) "The nI tention of the Settlor ndeU r the Uniform Trust Code: Whose Property Is It, Anyway?," Akron Law Review: Vol. 38 : Iss. 4 , Article 1. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol38/iss4/1 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The nivU ersity of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact [email protected], [email protected]. Newman: The Intention of the Settlor Under the UTC NEWMAN1.DOC 5/2/2005 8:57:22 AM THE INTENTION OF THE SETTLOR UNDER THE UNIFORM TRUST CODE: WHOSE PROPERTY IS IT, ANYWAY? Alan Newman* “Our goods, if we are so fortunate to have any, are not interred with our bones, but are left behind for others to enjoy. But we like to determine who shall enjoy them and how they shall be enjoyed. Shall we not do as we wish with our own?”1 I.
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  • SENATE BILL No. 141
    Session of 2021 SENATE BILL No. 141 By Committee on Judiciary 2-4 1 AN ACT enacting the Kansas uniform directed trust act; relating to power 2 over a trust held by a nontrustee; establishing powers and duties of a 3 trust director and a directed trustee; amending K.S.A. 58a-703 and 4 K.S.A. 2020 Supp. 58a-103, 58a-105 and 58a-603 and repealing the 5 existing sections; also repealing K.S.A. 58a-808. 6 7 Be it enacted by the Legislature of the State of Kansas: 8 New Section 1. Sections 1 through 18, and amendments thereto, may 9 be cited as the Kansas uniform directed trust act. 10 New Sec. 2. As used in the Kansas uniform directed trust act: 11 (1) "Breach of trust" includes a violation by a trust director or trustee 12 of a duty imposed on that director or trustee by the terms of the trust, this 13 act or law of this state pertaining to trusts other than this act. 14 (2) "Directed trust" means a trust for which the terms of the trust 15 grant a power of direction. 16 (3) "Directed trustee" means a trustee that is subject to a trust 17 director's power of direction. 18 (4) "Person" means an individual, estate, business or nonprofit entity, 19 public corporation, government or governmental subdivision, agency or 20 instrumentality, or other legal entity. 21 (5) "Power of direction" means a power over a trust granted to a 22 person by the terms of the trust to the extent the power is exercisable while 23 the person is not serving as a trustee.
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    Article 5. Creditors' Claims; Spendthrift and Discretionary Trusts. § 36C-5-501. Rights of beneficiary's creditor or assignee. (a) Except as provided in subsection (b) of this section, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary's interest by attachment of present or future distributions to or for the benefit of the beneficiary or other means. The court may limit the award to that relief as is appropriate under the circumstances. (b) Subsection (a) of this section shall not apply, and a trustee shall have no liability to any creditor of a beneficiary for any distributions made to or for the benefit of the beneficiary, to the extent that a beneficiary's interest is protected or restricted by any of the following: (1) A spendthrift provision. (2) A discretionary trust interest as defined in G.S. 36C-5-504(a)(2). (3) A protective trust interest as described in G.S. 36C-5-508. (2005-192, s. 2; 2007-106, s. 19.) § 36C-5-502. Spendthrift provision. (a) A spendthrift provision is valid only if it restrains both voluntary and involuntary transfer of a beneficiary's interest. (b) A term of a trust providing that the interest of a beneficiary is held subject to a "spendthrift trust", or words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest. (c) A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision and, except as otherwise provided in this Article, a creditor or assignee of the beneficiary may not reach the interest or a distribution by the trustee before its receipt by the beneficiary.
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  • A Handbook for Trustees (2020 Edition)
    A Handbook For Trustees (2020 Edition) Administering a Special Needs Trust TABLE OF CONTENTS INTRODUCTION AND DEFINITION OF TERMS ................4 Pre-paid Burial/Funeral Arrangements .............. 11 Grantor .....................................................4 Tuition, Books, Tutoring ................................ 11 Trustee .....................................................4 Travel and Entertainment ............................. 11 Beneficiary .................................................4 Household Furnishings and Furniture ................ 11 Disability ...................................................4 Television, Computers and Electronics .............. 11 Incapacity ..................................................4 Durable Medical Equipment ........................... 12 Revocable Trust ...........................................5 Care Management ...................................... 12 Irrevocable Trust ..........................................5 Therapy, Medications, Alternative Treatments ..... 12 Social Security Disability Insurance ....................5 Taxes ...................................................... 12 Supplemental Security Income .........................5 Legal, Guardianship and Trustee Fees ............... 12 Medicare ...................................................5 Medicaid ....................................................5 LOANS, CREDIT, DEBIT AND GIFT CARDS .................. 12 THE MOST IMPORTANT DISTINCTION .........................5 TRUST ADMINISTRATION AND ACCOUNTING .............
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  • Trust-Drafting Essentials
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  • The Testamentary Life Insurance Trust I
    University of Minnesota Law School Scholarship Repository Minnesota Law Review 1967 The esT tamentary Life Insurance Trust Minn. L. Rev. Editorial Board Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Editorial Board, Minn. L. Rev., "The eT stamentary Life Insurance Trust" (1967). Minnesota Law Review. 2879. https://scholarship.law.umn.edu/mlr/2879 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. 1118 The Testamentary Life Insurance Trust I. INTRODUCTION In a testamentary life insurance trust proceeds of a life in- surance contract are paid to trustees named in the will of the insured. The trustees hold or dispose of the proceeds as the terms of the will dictate. The distinctive characteristic of the trust is its dependence upon the vll of the insured for com- pletion; in contrast, the inter vivos life insurance trust is cre- ated before the insured's death. The dependence of the testa- mentary trust upon the will raises the problem of whether the disposition violates the Statute of Wills since the statutory for- malities are not followed. Further, when the policies are assigned to trustees to be named in the last will, no trustees exist until the insured's last will is legally established raising the question whether a valid trust has been created. Consequently, validity of such a trust is uncertain.1 The testamentary life insurance trust combines the in- dividual advantages of the life insurance contract, the inter vivos trust, and the inter vivos trust with a pour-over from the will of the settlor.2 One of the chief advantages of life in- surance is to provide the estate with necessary liquidity.
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  • Trust Law in the United States. a Basic Study of Its Special Contribution Ugo Mattei UC Hastings College of the Law, [email protected]
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1998 Trust Law in the United States. A Basic Study of Its Special Contribution Ugo Mattei UC Hastings College of the Law, [email protected] Henry Hansmann Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Recommended Citation Ugo Mattei and Henry Hansmann, Trust Law in the United States. A Basic Study of Its Special Contribution, 46 Am. J. Comp. L. Supp. 133 (1998). Available at: http://repository.uchastings.edu/faculty_scholarship/1290 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. TOPIC II.A.3 HENRY HANSMANN & UGO MATTEI Trust Law in the United States. A Basic Study of Its Special Contribution In the United States, academic commentary and law school cur- ricula continue to focus on the private trust in its historical role as a device for intrafamily wealth transfers, a rather technical and nar- row ground to approach our topic. Vastly more important is today the enormous - though commonly neglected - role that private trusts have come to play in the American capital markets.' To take just the most conspicuous examples, pension funds and mutual funds, both of which are generally organized as trusts, together now hold roughly forty per cent of all U.S. equity securities and thirty per cent of corpo- rate and foreign bonds.2 Similarly, turning from the demand side to the supply side of the securities markets, asset securitization trusts are now the issuers of a large fraction of all outstanding American debt securities - more than $2 trillion worth.3 This report rather then following the details of trust law as de- scribed in American law books will focus on the general economic functions served by a separate law of trusts.
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  • The Terms of the Trust: Extrinsic Evidence of Settlor Intent
    2 ACTEC LAW JOURNAL [Vol. 40:1 The Terms of the Trust: Extrinsic Evidence A. The History of the State of Mind/Intent Exception to the Hearsay Rule .................................... 25 of Settlor Intent B. Modern Application of the Hearay Rule ............. 27 CONCLUSION ................................................. 28 By Fred Franke and Anna Katherine Moody* INTRODUCTION The meaning – or ambiguity – of certain words or phrases Each edition of the Restatement of Trusts defined the phrase “the terms of may only become evident when placed in context. the trust” exactly the same. It means the manifestation of the settlor’s in- – Sandra Day O’Connor1 tent expressed in a manner that admits of its proof in judicial proceedings. Questions about the meaning of a trust arise in a variety of ways. This definition weds the language of the instrument to the evidentiary Perhaps a trustee is puzzling out how to apply the written text of the rules governing Trust contests. This article explores the extent to which trust to an unexpected or novel circumstance. In other cases, benefi- extrinsic evidence of settlor intent is admissible and consequently a con- ciaries may question their interest in the trust or, as is sometimes the sideration for those puzzling out the meaning of a trust. case, whether the trustee is acting properly. INTRODUCTION .................................................. 2 Answers to these questions depend on the terms of the trust. The terms of the trust embody the settlor’s intent: “The phrase ‘terms of the I. THE PLAIN MEANING RULE .............................. 3 A. The Plain Meaning Rule in General .................. 4 trust’ means the manifestation of the intention of the settlor with respect to the trust provisions expressed in a manner that admits of its proof in 1.
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