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Newsletter Mary Alice Smolarek, Editor Eileen Day O’Brien, Secretary Anne W msba section of estate and trust Deborah A. Cohn, Chair Mary Beth Beattie, Chair-Elect Newsletter Mary Alice Smolarek, Editor Eileen Day O’Brien, Secretary Anne W. Coventry, Editor Spring 2013 Vol. 22 No. 2 Notes From The Chair By Deborah A. Cohn, Esq. Paley, Rothman, Goldstein, Rosenberg, Eig and Cooper An important function of the Mary- member of the Section Council, spear- burdensome and costly for the estate. land State Bar Association’s Estates headed the Estates and Trust Law Sec- Modified administration, however, and Trust Law Section is identifying tion’s legislative efforts in 2012-2013 is not generally available for estates legislative opportunities to clarify, and deserve our special gratitude. having residuary benefi ciaries who are simplify or improve Maryland law so subject to inheritance tax. as to better enable individuals to pre- This column highlights some legisla- serve and plan the disposition of their tive victories and efforts, starting with Current law has several shortcomings. assets. Promoting effi cient and easier those bills that were enacted and, as of First, when the residuary benefi ciary is administration of estates and trusts is the time of submission of this column, a trust, the identity of the trustee rather another high priority. Each year, the await the Governor’s signature. than the identity of the trust benefi - Estates and Trust Law Section works ciaries determines whether the estate with legislators to achieve these goals I. Modified Administration and qualifi es for modifi ed administration. through promoting the Section’s own Inheritance Tax (SB 170/HB 858): In contrast, inheritance tax is imposed legislative agenda and assisting leg- Currently, certain estates may pursue or not imposed based on the identity of islators in developing their legislative modifi ed administration if the personal the benefi ciaries, not the trustee. ideas in a manner consistent with the representative elects modified and Section’s legislative priorities. all residuary beneficiaries consent. Second, current law does not provide Modifi ed administration requires fewer a simple mechanism for the personal Mary Beth Beattie, Chair-Elect of the and less extensive fi lings, offers an representative to handle probate assets Estates and Trust Law Section through expedited timetable, and in the right June, 2013, and Jonathan G. Lasley, a circumstances can be signifi cantly less (continued on page 2) IN THIS ISSUE Notes From The Chair ........................................................................................... 1 Reality Bytes 14.0 ...................................................................................................6 Commission Rates of Trustees in Judicial Sales .................................................... 10 Highlights from the 47th Annual Heckerling Institute on Estate Planning ...... 12 2012 Advanced Tax Institute Conference ............................................................ 16 Notes from the Chair. (continued from page 1) identifi ed after the close of modifi ed administration. For Applying the two-year rule only for intestacy purposes after-discovered assets, the personal representative must use potentially created signifi cant delays and risk with respect to regular administration. distribution of testate estates and non-probate assets since the law provided no termination of the period in which an after- Third, if current trust benefi ciaries are exempt from inheri- conceived child could be born. The current law contained tance tax, but remainder benefi ciaries are subject to that tax, no requirements or guidance for fi ling of the written typically inheritance tax is imposed only when the trust consents or giving notice of the birth of the posthumously distributes to the non-exempt remainder benefi ciaries. The conceived child. This absence created a similar risk of delay residuary benefi ciaries may, however, elect to prepay the and improper distribution of assets. The current law set the inheritance tax by fi ling an election with the Register of stage for litigation between those holding the decedent’s Wills for the county in which the estate inventory was fi led. property and those claiming title to it. Likewise, transferees Estates using modifi ed administration do not file of a decedent’s property might become parties to lawsuits inventories, meaning the residuary benefi - fi led on behalf of a posthumously conceived child claiming ciaries have no place to fi le the election a portion of distributed property. to prepay taxes. In addition to bringing parity in the defi nition of SB 170/HB 858 deals with these “child” for both testate and intestate decedents, issues. If a trust is the residuary HB 857 requires the fi ling of the written consents benefi ciary, the legislation per- within six months of death and the fi ling of a mits modifi ed administration if copy of the child’s birth record within 2 years the current trust benefi ciaries and 60 days after death. These documents are exempt from inheritance must be fi led with the Register of tax. The identity of the trustee Wills for the county in which is not determinative. It permits the decedent’s estate is pro- use of modifi ed administration for bated, or if there is no probate after-discovered assets if the per- estate, then in the county of sonal representative promptly reports the decedent’s domicile. For the property on a fi nal report and any decedent dying between promptly distributes that property. Finally, since all estates October 1, 2012, when the original law became effective, and fi le information reports, the legislation requires that the re- May 30, 2013, these documents must be fi led by December 1, siduary trust benefi ciaries’ election to prepay inheritance tax 2013. These fi ling requirements are designed to put persons be fi led in the county where the estate fi led its information holding property of the decedent on notice of a potential report (rather than an inventory). posthumously conceived child and to give the holders of property a place of record to which to refer before distribut- II. Posthumously Conceived Child (HB 857): In the 2011 ing property. HB 857 also includes provisions limiting the Session, the General Assembly changed the defi nition of liability of individuals who, without actual knowledge of “child” in Est. & Trusts §1-205 and §3-107 to include a child the existence of a posthumously conceived child, transfer conceived from the genetic material of a deceased person if or receive probate and non-probate assets upon the death of that person consented, in a written record signed on or after an individual. October 1, 2012, (i) to the use of his or her genetic material for posthumous conception in accordance with the requirements HB 857 makes no changes to a posthumously conceived of Health-Gen. §20-111 and (ii) to be the parent of the child child’s rights to Social Security benefi ts, allows for certainty posthumously conceived using his or her genetic material. in the distribution and receipt of the decedent’s property to take place within a reasonable period of time, and likely will In addition, for an after-born “relation” to be entitled to reduce litigation. a distribution in his or her own right, the posthumously conceived child must be born within two years after the III. Interests in Grantor and Qualifi ed Terminable Inter- death of the individual who had provided the requisite est Property Trusts (HB 859): A “grantor trust” is a trust consents. This “two year rule,” however, applied only to the income of which is taxed (for income tax purposes) to intestacy (Est. & Trusts §3-107) but not for other purposes the trust’s grantor rather than to the trustee. Under certain (Est. & Trusts §1-205, which defi nes “child” for purposes other than intestacy). (continued on page 3) 2 Notes from the Chair. (continued from page 2) circumstances, the grantor trust will not be included in the remainder interest is subject to the claims of the grantor’s grantor’s taxable estate for estate tax purposes. A qualifi ed creditors, be a general power of appointment resulting in terminal interest property (“QTIP”) trust is a trust established estate tax inclusion of the property subject to the power. As by a grantor for his or her spouse under restrictions that allow such, even though the trust property it is taxed for estate tax the trust to qualify for the estate or gift tax marital deduction purposes at the death of the original benefi ciary spouse, the under the Internal Revenue Code. trust property remaining upon the grantor’s later death will again be taxed in the grantor’s estate to the extent the trustee Under existing Internal Revenue Service pronouncements, may apply that property for the grantor’s use and benefi t. the grantor may retain a limited interest in these two types of trusts without prejudicing their intended estate or gift tax HB 859 creates a new Est. & Trusts §14-116 that limits the effect. The trustee of a grantor trust may have the discretion applicability of the general rule in the Restatement (Second) to reimburse the grantor for the income tax that the grantor of Trusts, §156(2) as it might apply in two limited situations. is required to pay on the trust’s income without causing the HB 859 applies to grantor trusts where the grantor’s inter- trust property to be included in the grantor’s estate. With an est in the trust consists of the trustee’s authority to pay or inter vivos QTIP trust, if the benefi ciary spouse predeceases reimburse the grantor for any tax on trust income or principal the grantor, the grantor may in certain circumstances retain a that is payable by the grantor under the law imposing the tax. remainder interest in the trust after the spouse’s death without With respect to inter vivos QTIP trusts, HB 859 applies to impacting the estate tax benefi ts.
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