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Probate & Trust Newsletter Probate and Trust Law Section Newsletter Published by the Section on Probate and Trust Law of the Philadelphia Bar Association JUNE 2019 | NO. 150 IN THIS ISSUE REPORT OF THE CHAIR BY JUSTIN BROWN, ESQUIRE | PEPPER HAMILTON LLP 03 Impact Investing: Considerations for Trustees My high school yearbook quote practice area and our Section will of Pennsylvania Trusts was from Venus Williams…“If you undergo monumental changes as 08 Case Summary from the fail to prepare, you prepare to technology and artificial intelligence Orphans’ Court Litigation fail.” It was so inspiring to me that transform what we do and how we Committee not surprisingly, I practice in an do it, as baby boomers retire and area of the law focused entirely on plan for the transfer of their wealth, 10 Tax Update preparation. and as estate tax exemptions 12 Practice Point: Petition v. continue to increase. Preparation is the foundation of an Complaint estates practice. Every day, we Our Section is beginning to focus 13 Potential Enhancements counsel our clients so that they may on the needs of the different to Pennsylvania Law prepare for their family’s cash needs, generations of estate and trust their incapacities, their potential practitioners. Our October quarterly 15 Technology Update creditors, their tax consequences meeting will be a reprisal of our both during their lives and at their Section’s successful Bench/Bar 18 Diversity: More than Just a deaths, their businesses, their deaths, program last year. The October Numbers Game and for the contingencies for which quarterly meeting is designed to 19 Ethics Column they are not yet aware. But do answer one simple question – if we, we heed our own advice? Are as estate planners, were advising we prepared for our future? Have ourselves to prepare for our own NEWSLETTER we implemented our own estate futures, what would we advise plans and business succession plans ourselves to do? Whether it be ARTICLES in order to enable the efficient planning for retirement, Social Would you like to see something management of our finances, Security, Medicare, long-term care, in future issues of the Probate clients, and estates when we retire, or wrapping up our practices, and Trust Law Section become incapacitated, or die? many of us have a tendency to Newsletter? Then, why don’t you take care of our clients before we This year, our Section has placed write it? If you are interested, take care of ourselves. We often significant emphasis on preparing please contact the Editor: neglect our own planning and our members and our Section for are therefore unprepared for our the future. In the next few years, our Michael Breslow own incapacities or deaths. Our email: [email protected] continued on page 3 1 Probate and Trust Law Section Newsletter | NO. 150 Probate and Trust Law Section Newsletter | NO. 150 2 IMPACT INVESTING: CONSIDERATIONS FOR TRUSTEES OF PENNSYLVANIA TRUSTS BY JOHN F. MCCABE, ESQUIRE | GLENMEDE Impact investing seeks to integrate a variety of different investment investing (PRI). (Though there are values and investment decisions1 strategies, some of which are a broad variety of approaches Such values might include referred to as socially responsible to this type of investing, and the environmental, social, governance, investing (SRI), environmental, legal implications of different and/or faith-based themes. This social, and governance investing strategies are beyond the scope type of investing encompasses (ESG), and program related of this article, the phrase “impact continued on page 4 1 John F. McCabe and Nina A. Farran, “Impact Investing for Trustees,” Trusts & Estates, June 2015. REPORT OF THE CHAIR, CONTINUED planning procrastination could for all of our Section members. Our relationship, regardless of our age have detrimental consequences new mentoring program will fuse or legal expertise. to ourselves, our families, our multiple generations of estate and I am eager to kick off our practices, our clients, and our trust practitioners so that we learn mentoring program and to Section. It is vital that our Section from each other, collaborate, and develop a framework for members have the tools necessary build mutually beneficial lasting sustainable, multi-generational to sufficiently prepare for the relationships. training. Please be on the lookout eventualities in their lives. The mentoring program will for the formal roll out of our Our Section’s future is also directly formally roll out in the summer/ Section’s mentoring program. If tied to the success of the next fall. Our mentoring program will you are interested in participating generation of estate and trust use mentoring groups designed or if you have suggestions as to practitioners who must be well to foster multi-generational how our mentoring groups can be equipped and well prepared to fill participation. Each group will successful, please do not hesitate the shoes of our more seasoned be comprised of approximately to contact Erica ([email protected]), practitioners. To groom our next eight attorneys of varying ages, Alicia (berensona@ballardspahr. generation, our Young Lawyers abilities, and expertise. From com), or me (brownjh@pepperlaw. Division Liaisons, Erica Russo and “senior” lawyers to junior partners com). Alicia Berenson, are in the process to young associates, there is a As I have said many times before, of carefully and thoughtfully place for everyone in a mentoring it is such an exciting time for our creating a new mentoring program group because all of us, to Section and our practice area. We for the Section – a mentoring varying degrees, can serve as may not know what lies ahead program that is not designed to both mentors and mentees. We of us, but we are taking our own disappear in the next six months, all bring our unique experiences advice and preparing for the but one that is crafted to have and perspectives to a mentoring futures of ourselves, our practice lasting impact and lasting benefit area, and our Section. Probate and Trust Law Section Newsletter | NO. 150 3 IMPACT INVESTING, CONTINUED investing” will be used here as an called for avoidance of products respective ESG disciplines. Scores umbrella term for purposes of this or services deemed unethical or are aggregated into a single overall legal discussion.) immoral. value, and capital is allocated to the companies that perform As more and more investors look Over time, restricting certain types the highest within their relative to implement impact investment of investments became known as industries. Two common techniques strategies, interesting questions “negative screening.” One of the for integrating ESG factors include are raised in the area of impact most powerful tools of negative “ESG Tilt,” which overweights stocks investing by fiduciaries. Consider screening is divestment — the with high ESG scores, and “ESG the following request that a intentional withdrawal of capital to Momentum,” which overweights beneficiary may submit to a trustee effect social change. As impact companies with improving ESG of a multi-generational, non- investing has evolved, investor focus scores and underweights companies charitable, Pennsylvania trust. The has shifted to emphasize companies with deteriorating ratings. current beneficiary is interested with positive or improving ESG in integrating her values with the initiatives. The advent of positive The Prudent Investor Rule types of investments held in her own screening marks an important portfolio and asks the trustee to do shift in the impact investing story The general rule under the same in a trust established for and provides investors with the Pennsylvania’s prudent investor her benefit. How should a trustee opportunity to obtain competitive statute provides that “[a] fiduciary presented with such a request returns while aligning their values shall invest and manage property go about determining whether with their investment portfolios. held in a trust as a prudent investor such investment actions would be would, by considering the purposes, consistent with the trustee’s duties As a result of these progressions, terms and other circumstances of under the Prudent Investor Rule? the impact investing landscape the trust and by pursuing an overall has transformed from a single lens investment strategy reasonably Impact Investing2 — divestment — to a broad range suited to the trust.3 This general rule of impact investing options. With is supplemented by more specific First, let’s take a closer look at what the proliferation of data providers factors4 that a trustee must consider constitutes impact investing. The available, impact investing strategies in making investment decisions, as desire to integrate values and are increasingly expanding their well as more specific duties that investment decisions is not a new approaches to include both the trustee must carry out, such phenomenon. It is, in fact, a type negative and positive screening as the duty to diversify.5 These of investing that has existed for techniques. In this realm, companies rules, modeled on the Uniform centuries, originating with religious are assigned a score or rating based Prudent Investor Act, provide organizations, whose values on criteria particular to each of the trustees with the rules of the road, 2 See id. This section of this article has been adapted from Impact Investing for Trustees, as published in the June 2015 issue of Trusts & Estates. 3 20 Pa. C. S. §7203. 4 20 Pa. C. S. §7203(c). 5 20 Pa. C. S. §7204. continued on page 5 Probate and Trust Law Section Newsletter | NO. 150 4 IMPACT INVESTING, CONTINUED so to speak, in carrying out their beyond the scope of this article to read too much into the absence fiduciary investment responsibilities. but, with respect to non-charitable of the duty of loyalty provision from (For simplicity, Pennsylvania’s trusts, the requirement that a trustee the Uniform Act in Pennsylvania’s Prudent Investor Rule will be consider “an asset’s … special prudent investor statute.
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