DOCSLIB.ORG

ACTEC 2020 Annual Meeting Musings

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
ACTEC 2020 Annual Meeting Musings ACTEC 2020 Annual Meeting Musings March 2020 The American College of Trust and Estate Counsel is a national organization of approximately 2,500 lawyers elected to membership. One of its central purposes is to study and improve trust, estate and tax laws, procedures and professional responsibility. Learn more about ACTEC and access the roster of ACTEC Fellows at www.actec.org. This summary reflects brief highlighted individual observations of Steve Akers from the seminars at the 2020 Annual Meeting and does not purport to represent the views of ACTEC as to any particular issues. Steve R. Akers Senior Fiduciary Counsel Bessemer Trust 300 Crescent Court, Suite 800 Dallas, TX 75201 214-981-9407 [email protected] www.bessemer.com Table of Contents Introduction ....................................................................................................................................................... 1 Items 1-13 are observations from a seminar by Cynda Ottaway, Todd Angkatavanich, and Keri D. Brown, Hot Topics ........................................................................................................................................... 1 1. Legislative Proposals .................................................................................................................................. 1 2. Section 2703 “Device” Test Does Not Apply for Gift Tax Purposes, Tax-Affecting, Kress v. U.S. ............... 1 3. Valuation of Timber Using Income Approach, Tax-Affecting, Estate of Jones ............................................. 2 4. Improper to Value LLC Units Under Assumed Subsequent Events That Are Not Reasonably Probable, Grieve ........................................................................................................................................................ 2 5. FLP Assets Included in Estate Under Section 2036(a)(1); Application of Section 2043 Consideration Offset Regarding Section 2036 Transfer; Formula Transfer to Charitable Lead Trust Not Respected, Estate of Moore ........................................................................................................................................................ 3 6. Transfer Planning With Qualified Opportunity Funds .................................................................................. 4 7. Other Transfer Planning Issues .................................................................................................................. 4 Items 8-11 are observations from a symposium by Kathleen Nalty (a Diversity and Inclusion Consultant in Denver, Colorado) and Stephanie Perry, What You Don’t Know Can Hurt You: The Impact of Unconscious Bias on the Practice of Law ....................................................................................................... 5 8. Overview and Significance of Unconscious Bias ......................................................................................... 5 9. Types of Unconscious Biases That Interfere With Good Decision Making .................................................. 5 10. Diversity and Inclusion in Legal Practice and How Bias Interferes .............................................................. 6 11. Strategies For Interrupting Implicit Bias ...................................................................................................... 7 Items 12-15 are observations from the Annual Joseph Trachtman Memorial Lecture by Duncan E. Osborne: Truth, Transparency and the Right of Privacy ............................................................................... 8 12. Truth, Transparency, and Privacy ................................................................................................................ 8 13. Financial Action Task Force (FATF) ............................................................................................................. 8 14. Privacy Under Attack .................................................................................................................................. 9 15. Possible Actions That Can Be Taken for Privacy Collection ....................................................................... 10 Items 16-20 are observations from a seminar by Kim D. Fetrow, Shaheen I. Imami, and Leiha Macauley, Loose Lips Might Sinks Ships – The Ethics of Disclosures and Testimony by Estate Planners: Tips, Tools and Trade Secrets .......................................................................................................................................... 10 16. Attorney-Client Privilege ........................................................................................................................... 10 17. Duty of Confidentiality .............................................................................................................................. 12 18. Work Product Doctrine ............................................................................................................................. 13 19. Production Requests ................................................................................................................................ 13 20. Testifying as a Witness ............................................................................................................................ 14 Items 21-30 are observations from a seminar by Lyat Eyal, Michelle B. Graham, Patrick Francis Harney, and Kevin E. Packman, Thinking of Naming a Foreign Person as a Fiduciary? Think Twice. Beneficiaries Living Abroad? Check Thrice. Advising Clients Who Want to Name a Foreign Individual as Fiduciary of their Estate Plan or when a Beneficiary Resides Abroad ............................................................................ 15 21. Seek Advice from Attorney in Foreign Country ......................................................................................... 15 22. Basic Differences Between Common Law and Civil Law Countries ......................................................... 15 23. What Law Applies .................................................................................................................................... 16 24. Will a Foreign Country Recognize the Validity of a Will? ........................................................................... 16 25. Trust Issues; Choice of Law; Unintended Consequences ......................................................................... 17 26. United Kingdom Tax Issues With Trusts ................................................................................................... 17 www.bessemertrust.com/for-professional-partners/advisor-insights i 27. “Foreign Trusts” For U.S. Tax Purposes ................................................................................................... 17 28. Powers of Attorney; Health Care Directives ............................................................................................. 18 29. Foreign Wills ............................................................................................................................................ 18 30. U.S. Reporting of Foreign Assets ............................................................................................................. 18 Items 31-35 are observations from a seminar by Sarah Moore Johnson, Professor Kristine S. Knaplund, and Joshua S. Rubenstein, When ART and 23andMe® Shake the Family Tree: Updating Estate Plans for Changing Families ......................................................................................................................................... 19 31. Assisted Reproduction Technology (ART) Significance; Definitions ........................................................... 19 32. DNA Testing ............................................................................................................................................. 19 33. Case Study 1 – Discovery of Half-Siblings from DNA Tests ...................................................................... 20 34. Case Study 2 – Posthumous Child ............................................................................................................ 22 35. Case Study 3 – Surrogate Situation .......................................................................................................... 24 Items 36-44 are observations from a seminar by Louis S. Harrison, Michaelle D. Rafferty, and M. Allison Taylor, Lawyer Well-Being– Forrest Gump and the Practice of Law: Did you know that Stress Reducing Techniques for Lawyers are also Life Enhancing Strategies? (Substance Abuse/Mental Health/Ethics) 26 36. Significance of Well Being and Stress Reducing Techniques .................................................................... 26 37. Immediate Techniques to Deal With Stressful Situations ......................................................................... 26 38. Dealing With Habitual Stress .................................................................................................................... 27 39. Work to Live ............................................................................................................................................. 27 40. Multi-Tasking ............................................................................................................................................ 27 41. Greatest Cause of Stress—Bad Clients .................................................................................................... 28 42. Physical Activity
Load more

Recommended publications
  • Probate Planning Strategies to Minimize Estate Administration Tax
    Probate Planning Strategies to Minimize Estate Administration Tax Presented by: Lindsay Ann Histrop, J.D., LL.M., T.E.P. Why Probate a Will? • A probated will – formally known in Ontario as a Certificate of Appoint of Estate Trustee with a Will –is proof of the executor’s authority • Probated will is generally needed for the executor to deal with certain assets of the deceased • Generally needed transfers of real estate, securities, bank deposits, etc. • May also be needed for other assets 2 Probate Tax in Ontario • Probate tax is levied under the Estate Administration Tax Act, 1998 (“EATA”) • Estate Administration Tax (“EAT”) must be paid in order for the court to probate the will • Two “brackets” • 0.5% on first $50,000 of the value of the estate • 1.5% on the value of the estate in excess of $50,000 3 Probate Tax in Ontario • “Value of the estate” –defined with reference to the Estates Act • Generally, the value of the assets in the estate being submitted for probate • Can deduct encumbrances on real property, but no other debts 4 Why Plan for Probate Tax? • Cost of probate in Ontario is essentially $15,000 for every $1 million of assets in the estate • EAT is not a deductible income tax expense of the estate or the deceased • EAT is not “recovered” by being added to the adjusted cost base of the assets in the hands of the estate/beneficiaries 5 Probate Tax Planning Strategies and Issues 1. Joint ownership 2. Beneficiary designations 3. Multiple wills 4. Powers of appointment 5.
    [Show full text]
  • Genome-Wide Meta-Analysis of Common Variant Differences Between Men and Women
    Human Molecular Genetics, 2012, Vol. 21, No. 21 4805–4815 doi:10.1093/hmg/dds304 Advance Access published on July 27, 2012 Genome-wide meta-analysis of common variant differences between men and women Vesna Boraska1,2,∗, Ana Jeroncˇic´ 3, Vincenza Colonna1,5, Lorraine Southam1, Dale R. Nyholt 6, Nigel William Rayner1,7,8, John R.B. Perry7,9,10, Daniela Toniolo11, Eva Albrecht12, Wei Ang13, StefaniaBandinelli14, MajaBarbalic15, IneˆsBarroso1,16, Jacques S.Beckmann18,19, ReinerBiffar20, Dorret Boomsma22, Harry Campbell23, Tanguy Corre11, Jeanette Erdmann24,25,To˜ nu Esko27,28,29, Krista Fischer27, Nora Franceschini30, Timothy M. Frayling9, Giorgia Girotto31, Juan R. Gonzalez32,33, Tamara B. Harris34, Andrew C. Heath35, Iris M. Heid36,37, Wolfgang Hoffmann21, Albert Hofman38,40, Momoko Horikoshi7,8, Jing Hua Zhao17, Anne U. Jackson41,42, Jouke-Jan Hottenga22, Antti Jula43, Mika Ka¨ho¨ nen44,46, Kay-Tee Khaw47, Lambertus A. Kiemeney48, Norman Klopp52, Zolta´n Kutalik18,54, Vasiliki Lagou7,8, Downloaded from Lenore J.Launer34, TerhoLehtima¨ki45,46, Mathieu Lemire55, Marja-LiisaLokki56, Christina Loley26, Jian’an Luan17, Massimo Mangino10, Irene Mateo Leach58, Sarah E. Medland6, Evelin Mihailov28, Grant W. Montgomery6, Gerjan Navis59, John Newnham13, Markku S. Nieminen61, Aarno Palotie1,57,62,63, Kalliope Panoutsopoulou1, Annette Peters53, Nicola Pirastu31, http://hmg.oxfordjournals.org/ Ozren Polasˇek4, Karola Rehnstro¨ m1,57, Samuli Ripatti57, Graham R.S. Ritchie1,64, Fernando Rivadeneira38,39,40, Antonietta Robino31, Nilesh J. Samani65, So-Youn Shin1, Juha Sinisalo61, Johannes H. Smit66, Nicole Soranzo1,10, Lisette Stolk39,40, Dorine W. Swinkels49, Toshiko Tanaka68, Alexander Teumer69, Anke To¨ njes70,71, Michela Traglia11, Jaakko Tuomilehto72,73,74,75, Armand Valsesia18,54,76, Wiek H.
    [Show full text]
  • [Title] A-Z of Spanish Probate
    United States A-Z of U.S. Estate Planning Concepts This glossary is directed mainly at the solicitor whose clients are American, have assets in America, or U.S. family members who are beneficiaries of trusts. The U.S. Federal government imposes income and capital taxes on its citizens regardless of their residence or their domicile. However, the Federal government does not have its own probate or trusts law. The United States is composed of the District of Columbia and 50 states, each of which have their own probate, Wills, trusts and tax laws. Many states have adopted "uniform" laws that are promulgated by the Uniform Law Commissioners in an effort to create some uniformity among the laws of the various states. Uniform laws in the private client area generally include the Uniform Trust Code, the Uniform Probate Code, and the Uniform Principal and Income Act, which is the most widely adopted of the Uniform Laws in this area. See www.uniformlaws.org. Many states have adopted tax codes that mirror the U.S. Federal tax code in varying degrees. All Section or § references below are to the United States Federal Internal Revenue Code of 1986, as amended (the “Code”) and to the Treasury Regulations promulgated thereunder (the “Regulations”). A Administrator (or executor) The terms administrator and executor generally have the same meaning under U.S. law as they do under English law. The term "personal representative" is also used in the United States. However, for U.S. Federal estate tax purposes, the term “executor” means the executor or administrator of the decedent (i.e., the deceased), or, if there is no executor or administrator appointed, qualified, and acting within the United States, then any person in actual or constructive possession of any property of the decedent.
    [Show full text]
  • Investment Account Application Form (For Trust Investments)
    Investment Account Application Form (for Trust Investments) How to fill in this form: controllers. If you do not have the necessary document, please call us on 0800 902 902. • You should only use this form to open an Investment Account on behalf of a trust. To open an account for • Please use black ink and write clearly inside the boxes yourself, please speak to your adviser. If you do not have using capital letters. an adviser, go to fidelity.co.uk • Please only complete the beneficiary details section and • We cannot set an account up in the name of the trust, but nationality questions for Trustees if you are a Bare trust. you can give the account a designation to distinguish it • If you make a mistake, please correct it but don’t from any other accounts you have with us. use correction fluid. • You will need to give us details of all the trustees. If there is more than one, we will set it up as a joint What’s next? account. The trustee named first on this form will be Please send your completed application form to: the principal account holder and will receive all Fidelity International communications about the account. PO Box 80 • We need to see the document that established the Tonbridge TN11 9YA trust, typically the trust deed. This is evidence of We will open the trust’s account and send a confirmation of beneficial ownership and the identity of the trust’s any lump-sum investments or Direct Debits. Checklist of documents you should include with your completed form Please note that if you send photocopies of any of the following documents, you must have them certified first.
    [Show full text]
  • Alternate Planning to Secondary Wills for Avoiding Probate and Estate Administration Tax
    Alternate Planning to Secondary Wills for Avoiding Probate and Estate Administration Tax February 12, 2019 Lindsay Histrop, J.D., LL.M, TEP Alternatives to Multiple Wills to Avoid EAT Why is Estate Administration Tax an Issue? • Ontario estate administration tax (“EAT”) is essentially equal to 1.5% of the value of the assets passing under probate (Estate Administration Tax Act, 1998) • Probate, or a Certificate of Appointment of Estate Trustee with a Will is generally required to transfer assets in Ontario following death of the owner • Real estate in the name of the deceased, always requires probate unless it is a first conveyance following conversion from Registry • Financial institutions generally require probate to transfer assets held in the name of the deceased 2 Multiple Wills Technique to Avoid EAT • The executor’s authority is derived from the Will • Probate is only the evidence of that authority • Where the evidence is not required, assets may pass under the un‐probated Will • Examples include: shares in closely held private corporations, loans to closely held private corporations and family members, personal articles, real estate that was acquired under the old Registry system where it is a first conveyance after the conversion of the title to the Land Titles system 3 Multiple Wills Technique • The practice evolved where a testator would have one or more Wills such that assets not requiring probate could be distributed under a non‐probate Will • estate assets are not known until the testator dies • Accordingly, the drafting of multiple Wills became very creative, including the so called basket clause to make sure that every asset that did not require probate be allocated to the non‐probate Will • Re Milne, 2018 ONSC 4174, put this drafting technique in jeopardy threatening to invalidate multiple wills 4 Milne Estate (Re), 2019 ONSC 579 Validity of multiple Wills (appeal decision) • Appeal from September 11, 2018 ONSC decision by Dunphy J.
    [Show full text]
  • Estate and Trust Planning
    ESTATE SEPTEMBER 2019 AND TRUST PLANNING 02 GUIDE TO ESTATE AND TRUST PLANNING GUIDE TO ESTATE AND TRUST PLANNING HELPING YOU PLAN FOR YOUR FUTURE AND YOUR FAMILY’S FUTURE Welcome to our Guide to Estate and Trust transfer assets to your beneficiaries in a Planning. This guide is designed to give you manner that is consistent with your goals TIME TO CREATE A BESPOKE PLAN a basic understanding of Estate and Trust and objectives. We provide an extensive THAT WORKS FOR YOU AND WHAT Planning and the issues you may face. We range of services, plus the ability to tailor YOU WANT TO ACHIEVE? look at various ways you could reduce a solutions based on your specific needs. Every family is different, and potential Inheritance Tax liability in order to It‘s not easy projecting yourself into the every estate is unique. We pass on as much wealth as possible. future and seeing what‘s around the next understand this, and we work This guide addresses the main bend. Benjamin Franklin famously said: with you to create a bespoke arrangements available to individuals. ‘Nothing can be said to be certain, except plan that is tailored for you and The language used throughout this guide death and taxes.’ But while there’s nothing what you want to achieve. To is technical due to the nature of the subject. any of us can do about the former, there are find out more about how we We always recommend that you obtain steps you can take to legitimately reduce can help and our Estate and professional financial advice before making any a potential Inheritance Tax liability.
    [Show full text]
  • Age Conditions in Wills and Their Effects
    Age conditions in Wills and their effects Age contingencies in wills are very common. Many testator’s wish to make gifts or leave a share of their estate to their beneficiaries’ subject to them having reached a certain age first. This is most often seen with gifts to the testator’s own children but does also extend to gifts to remoter issue and sometimes even to other beneficiaries altogether. This month’s CPD will examine the different effects of age contingencies in wills. WHAT IS THE ISSUE? Age conditions certainly have their uses. They’re a great vehicle for exercising some control over when a beneficiary may inherit. It may be that a testator sees no reason that their children shouldn’t inherit absolutely but they want to push back that inheritance age to a point where they feel the child will be more mature and capable of managing an inheritance. The issue then comes down to understanding how the effect of these gifts change depending on who the beneficiary is, what age condition is set, and how the finer details of how the clause is worded can undermine that control. VESTED VS CONTINGENT INTERESTS Firstly, we need to establish whether a gift is vested or contingent as the two types of legacy are treated very differently. If a beneficiary doesn’t need to meet any kind of condition in order to be entitled to a legacy, then the gift is vested. If a beneficiary is not entitled to the subject matter of the gift until a specified condition is met, then the interest is contingent.
    [Show full text]
  • Estate and Probate Planning – Using Trusts Tax Efficiently
    Estate and Probate Planning – Using Trusts Tax Efficiently ICANS FEBRUARY 15, 2013 PRESENTED BY: RICHARD NIEDERMAYER Copyright © 2011 Stewart McKelvey. All rights reserved. Not to be copied or used in whole or in part without the express written consent of Stewart McKelvey 2 Copyright © 2011 Stewart McKelvey What is Estate Planning? • Planning directed at: • Accumulating wealth • Transferring wealth to succeeding generations • Protecting wealth from unnecessary income and probate taxes and from creditors and others challenging the estate plan 3 Copyright © 2011 Stewart McKelvey Part A – Trusts – Agenda • What is a Trust? • Taxation of Trusts • Inter Vivos Trusts • Family Trusts • Alter Ego and Joint Partner Trusts • Spousal Trusts • Testamentary Trusts • Insurance Trusts • RRSP Trusts 4 Copyright © 2011 Stewart McKelvey What is a Trust? • A legal relationship whereby one person (the settlor) transfers property to another person (the trustee) to hold for the benefit of others (the beneficiaries) • The settlor, trustee and beneficiary can all be the same person, but usually two or more persons fill those roles • A formal trust agreement or trust deed is typically required • Testamentary trusts are established in a will 5 Copyright © 2011 Stewart McKelvey What is a Trust? (Cont’d) • Not a separate legal person • Deemed a person for income tax purposes • Trustee is a fiduciary and must always act impartially and in the best interests of the beneficiaries • Trusts can be revocable or irrevocable, fixed interest or discretionary 6 Copyright
    [Show full text]
  • Adviser Guide the Bare Gift Trust
    This document is for investment professionals only and should not be relied upon by private investors. Adviser guide The Bare Gift Trust FundsNetwork Trusts Contents 1 The FundsNetwork Bare Gift Trust – objectives and suitability 3 2 The FundsNetwork Bare Gift Trust and inheritance tax planning 3 3 The FundsNetwork Bare Gift Trust provisions in detail 3 4 The UK tax implications of the FundsNetwork Bare Gift Trust 4 5 Notifying HMRC about a trust 5 6 Further information 5 IMPORTANT NOTE: FundsNetwork cannot give advice regarding the legal or tax effects of the FundsNetwork Trusts, and will not accept responsibility for any loss occurring from their use. Investors are strongly recommended to seek independent legal advice before completing the trust deed to ensure the Trust meets their needs. Once established, trusts may be difficult to unwind and gifting money or assets into certain trusts will mean you cease to have access to the money or assets. 2 1 The FundsNetwork Bare Gift Trust – objectives The personal representatives of the deceased Donor will then assume the and suitability role of Trustee under the Trust. This means that, although the trust investment will not be part of the Donor’s estate for inheritance tax or probate TM The aim of the draft FundsNetwork Bare Gift Trust deed is to facilitate purposes, securing probate or letters of administration to the Donor’s effective lifetime inheritance tax planning. Potential users of the estate will still be necessary to ensure that the personal representatives FundsNetwork Bare Gift Trust could be: can act as Trustees under the Trust.
    [Show full text]
  • Letters to the Editor SHOX Point Mutations in Dyschondrosteosis
    J Med Genet 2001;38:323–351 323 Letters to the Editor J Med Genet: first published as 10.1136/jmg.38.5.323 on 1 May 2001. Downloaded from SHOX point mutations in dyschondrosteosis Céline Huber, Veronica Cusin, Martine Le Merrer, Michèle Mathieu, Véronique Sulmont, Nathalie Dagoneau, Arnold Munnich, Valérie Cormier-Daire Dyschondrosteosis (DCS) has been recently Table 2 SHOX point mutations identified in DCS patients ascribed to mutations of the SHOX gene on the pseudoautosomal region of the X and Y chro- Sequence change Exon Protein eVect mosomes.12 Most cases are accounted for by Family 4 106–107 del CG 2 77X large scale deletions3–7 and only two point Family 5 334 C→T 3 Q112X Family 6 445 G→T 3 E149X mutations have been hitherto identified in exon Family 7 481 ins GT 3 181X 4 (R195 X and Y199X12). Here, we show that Family 8 517 C→T 4 R173C point mutations in various regions of the 1 SHOX gene also play an important role in the one nonsense mutation ). Studying eight addi- pathogenesis of the disease. tional DCS families, we describe here three A total of 22 aVected subjects belonging to deletions and five point mutations of SHOX. Taken together, these data suggest that SHOX eight families were included in the study. deletion is the most frequent common disease Inclusion criteria for aVected status were short causing mechanism in DCS (10/16, 62.5%) stature (2 SD below normal) with short and that point mutations also account for a sig- forelimbs and distal radioulnar deformity on nificant fraction of our patients (6/16, 37.5%).
    [Show full text]
  • Guide to Trusts
    FOR FINANCIAL ADVISERS ONLY TECHNICAL GUIDE TO TRUSTS INTRODUCTION All our trusts are ‘Pre-owned The taxation information set Assets Tax’ (POAT) friendly. They out in this guide is based on our This booklet is intended as a are all governed and construed understanding of the general practical guide for advisers who are according to the law of the Isle of application of Her Majesty’s considering the use of an offshore Man. Therefore, the courts of the Revenue and Customs (HMRC) plan in conjunction with a trust to Isle of Man shall have exclusive practice as at March 2021. assist the planning and arrangement jurisdiction to hear all disputes of their client’s investment affairs. concerning these Trusts. The contents of this booklet and In particular, it will be of use to any trust wording provided by us those wishing to enhance the Our trusts are offered free of charge should not be used as the basis of benefits offered through the range to our clients and ongoing support advice given to individual clients of products designed to meet the is provided by our Technical Team without independent legal advice needs of both UK domiciled and who will assist and provide support being sought. We cannot be held non-UK domiciled clients. in respect of any trust and tax responsible for any actions taken related queries. or refrained from being taken Significant and controversial by individuals as a result of the changes to the Inheritance Tax information provided in this guide. treatment of trusts were contained within Schedule 20 of the Finance Act 2006.
    [Show full text]
  • Notes and References
    Notes and References Caveat: The Dangers of Behavioral Biology The contents of this book are known to be dangerous. I do not mean that in the sense that all ideas are potentially dangerous. Specifically, ideas about the biological basis of behavior have encouraged political tendencies and movements later regretted by all decent people and condemned in school histories. Why, then, purvey such ideas? Because some ideas in behavioral biology are true—among them, to the best of my knowledge, the ones in this book—and the truth is essential to wise action. But that does not mean that these ideas cannot be distorted, nor that evil acts cannot arise from them. I doubt, in fact, that what I say can prevent such distortion. Political and social movements arise from worldly causes, and then seize whatever congenial ideas are at hand. Nonethe- less, I am not comfortable in the company of scientists who are content to search for the truth and let the consequences accumulate as they may. I therefore recount here a few pas- sages in the dismal, indeed shameful history of the abuse of behavioral biology, in some of which scientists were willing participants. The first episode is recounted in William Stanton’s The Leopard’s Spots: Scientific Atti- tudes Toward Race in America, 1815–59 (Chicago: University of Chicago, 1960). Such names as Samuel George Morton, George Robins Gliddon, and Josiah Clark Nott mean little to present-day students of anthropology, but in the difficult decades between the death of Jeffer- son and the Civil War, they founded the American School of Anthropology.
    [Show full text]