Discretionary Trust Guide
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Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline 1
Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline Order of Operations (Will) • Problems with the will itself o Facts showing improper execution (signature, witnesses, statements, affidavits, etc.), other will challenges (Question call here is whether will should be admitted to probate) . Look out for disinherited people who have standing under the intestacy statute!! . Consider mechanisms to avoid will challenges (no contest, etc.) o Will challenges (AFTER you deal with problems in execution) . Capacity/undue influence/fraud o Attempts to reference external/unexecuted documents . Incorporation by reference . Facts of independent significance • Spot: Property/devise identified by a generic name – “all real property,” “all my stocks,” etc. • Problems with specific devises in the will o Ademption (no longer in estate) . Spot: Words of survivorship . Identity theory vs. UPC o Abatement (estate has insufficient assets) . Residuary general specific . Spot: Language opting out of the common law rule o Lapse . First! Is the devisee protected by the anti-lapse statute!?! . Opted out? Spot: Words of survivorship, etc. UPC vs. CL . If devise lapses (or doesn’t), careful about who it goes to • If saved, only one state goes to people in will of devisee, all others go to descendants • Careful if it is a class gift! Does not go to residuary unless whole class lapses • Other issues o Revocation – Express or implied? o Taxes – CL is pro rata, look for opt out, especially for big ticket things o Executor – Careful! Look out for undue -
Text and Time: a Theory of Testamentary Obsolescence
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Washington University St. Louis: Open Scholarship Washington University Law Review Volume 86 Issue 3 2009 Text and Time: A Theory of Testamentary Obsolescence Adam J. Hirsch Florida State University Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Estates and Trusts Commons Recommended Citation Adam J. Hirsch, Text and Time: A Theory of Testamentary Obsolescence, 86 WASH. U. L. REV. 609 (2009). Available at: https://openscholarship.wustl.edu/law_lawreview/vol86/iss3/2 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. TEXT AND TIME: A THEORY OF TESTAMENTARY OBSOLESCENCE ADAM J. HIRSCH∗ Events may occur after a will is executed that ordinarily give rise to changes of intent regarding the estate plan—yet the testator may take no action to revoke or amend the original will. Should such a will be given literal effect? When, if ever, should lawmakers intervene to update a will on the testator's behalf? This is the problem of testamentary obsolescence. It reflects a fundamental, structural problem in law that can also crop up with regard to constitutions, statutes, and other performative texts, any one of which may become timeworn. This Article develops a theoretical framework for determining when lawmakers should—and should not—step in to revise wills that testators have left unaltered and endeavors to locate this framework in the context of other forms of textual obsolescence. -
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. ......................................................... -
Discretionary Distributions, 26Th Annual Estate Planning
DISCRETIONARY DISTRIBUTIONS Given By Frank N. Ikard, Jr. Ikard & Golden, P.C. Austin, Texas Advanced Estate Planning and Probate Course 2002 June 5-7, 2002 Dallas, Texas CHAPTER 40 FRANK N. IKARD, JR. IKARD & GOLDEN, P.C. Attorney at Law 106 East Sixth Street, Suite 500 Austin, Texas 78701 (512) 472-2884 EDUCATION: - University of Texas School of Law, J.D., 1968 - University of the South and University of Texas, B.A., 1965 - Phi Alpha Delta PROFESSIONAL ACTIVITIES: Board Certified, Estate Planning and Probate Law, Texas Board of Legal Specialization American Bar Association, Real Property Probate and Trust Law Section, Estate and Trust Litigation and Controversy Committee American College of Trust and Estate Council, Fellow 1979 - present Member, Fiduciary Litigation Committee; Chairman, Breach of Fiduciary Duty Subcommittee Greater Austin Crime Commission, 1999 - present Board of Director, 2000 - 2001 Real Property Probate and Trust Law Section -American Bar Association, Estate and Trust Litigation Committee; Continuing Legal Education Subcommittee Real Estate, Probate and Trust Law Section, State Bar of Texas, Member and Past Chairman; Past member of the Trust Code Committee and Legislative Committee Texas Academy of Real Estate, Probate and Trust Lawyers, Co-Founder and Member Board of Directors, Texas Bar Foundation, Fellow 1991 - present Travis County Bar Association, Estate Planning and Probate Section The Best Lawyers in America, 1993-2000 Fifth Circuit Judicial Conference, 1983 SPEECHES AND PUBLICATIONS: Specialty Drafting Regarding the Fiduciary, Travis County Bar Association, Probate and Estate Planning Seminar, March 2001 Fiduciary Duties: What are They and How to Modify Them, Texas Banker’s Association Estate Administration Seminar, October 2000. -
SPECIAL NEEDS TRUSTS: What Every Estate Planning Professional Needs to Know Bernard A
2013 NAEPC Webinar SPECIAL NEEDS TRUSTS: What Every Estate Planning Professional Needs To Know Bernard A. Krooks, JD, CPA, LL.M, CELA, AEP Littman Krooks LLP www.littmankrooks.com Special Needs Trusts Third Party SNT D(4)(A) SNT D(4)(c)SNT ©2013 Special Needs Trust ◦(d)(4)(A) trust ◦First-party trust ◦Payback trust ©2013 1 SSDI ◦ Unable to do any substantial gainful activity due to disability Medicare Special Ed VA Means tested ◦ Medicaid ◦ SSI ©2013 Created with the assets or income of an individual with disabilities under age 65 Inheritance PI lawsuit Matrimonial action ◦ Established by the individual’s parent, grandparent, legal guardian or court ©2013 No SSI or Medicaid penalty period Disregarded as available income or resource Medicaid payback ©2013 2 Protects resources without sacrificing government benefits Irrevocable trust Wholly discretionary trust Individual with disabilities must be sole beneficiary while alive ©2013 State law Amendments Asset protection SNT Compensation to caregiver Insurance on life of family caregiver Family visitation ©2013 Reimbursement is only for Medicaid, not all public benefits Reimbursement is based on actual Medicaid expenditures, not prevailing market costs No interest Some services not readily available in the private market ©2013 3 Created and managed by non-profit association May be established by the individual Separate accounts maintained for the benefit of individuals with disabilities (d)(4)(C) trust Modified payback provision ©2013 Non-profit 501(C)(3) organization as trustee Must be irrevocable Beneficiary may be any age Medicaid asset transfer issue after age 65 Often used in smaller cases ©2013 Accept the money Spend down Gift Self settled SNT Pooled trust ©2013 4 Incomplete gift ◦ Creditors’ claims ◦ Sole benefit ◦ Limited POA Grantor trust Estate tax inclusion ◦ Medicaid payback deduction ©2013 No payback requirement ◦ Can direct corpus at death of beneficiary to any individual No age limit Third-party SNT ◦ Testamentary trust ◦ Inter-vivos trust Revocable v. -
Uniform Trust Code Final Act with Comments
UNIFORM TRUST CODE (Last Revised or Amended in 2010) Drafted by the NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS and by it APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES at its ANNUAL CONFERENCE MEETING IN ITS ONE-HUNDRED-AND-NINTH YEAR ST. AUGUSTINE, FLORIDA JULY 28 – AUGUST 4, 2000 WITH PREFATORY NOTE AND COMMENTS Copyright © 2000, 2010 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS April 10, 2020 1 ABOUT NCCUSL The National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its 114th year, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. Conference members must be lawyers, qualified to practice law. They are practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state governments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical. $ NCCUSL strengthens the federal system by providing rules and procedures that are consistent from state to state but that also reflect the diverse experience of the states. $ NCCUSL statutes are representative of state experience, because the organization is made up of representatives from each state, appointed by state government. $ NCCUSL keeps state law up-to-date by addressing important and timely legal issues. $ NCCUSL’s efforts reduce the need for individuals and businesses to deal with different laws as they move and do business in different states. -
Special Needs Trust Comment: This Is an Irrevocable Inter Vivos Trust for the Benefit of the Settlor's Disabled Child. It Is
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. -
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. -
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. -
The Functions of Trust Law: a Comparative Legal and Economic Analysis, 73 N.Y.U
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. -
Colorado Estate Planning Handbook
LIST OF CHAPTERS VOLUME 1 Chapter 1 ESTATE PLANNING Louisa M. Ritsick, Esq. Chapter 2 ETHICAL ISSUES IN ESTATE PLANNING James R. Walker, Esq. Chapter 3 ENGAGEMENT LETTERS Constance Tromble Eyster, Esq. Chapter 4 NONPROBATE TRANSFERS Josie M. Faix, Esq. Chapter 5 JOINT TENANCY Carl G. Stevens, Esq. Chapter 6 INTER VIVOS GIFTS Mark D. Masters, Esq. Chapter 7 UNMARRIED COUPLES Elizabeth A. Bryant, Esq. Erica L. Johnson, Esq. Chapter 8 ELDER LAW CONSIDERATIONS FOR ESTATE PLANNING Kerri L. Klein, Esq. Chapter 9 PROTECTED PERSONS Magistrate (Retired) Sandra Franklin M. Carl Glatstein, Esq. Chapter 10 POWERS OF ATTORNEY Thomas A. Rodriguez, Esq. Chapter 11 ADVANCE DIRECTIVES Michael A. Kirtland, J.D., LL.M., CELA Chapter 12 HIPAA ISSUES IN ESTATE PLANNING Michael A. Kirtland, J.D., LL.M., CELA Catherine Anne Seal, J.D., LL.M., CELA Chapter 13 RESERVED (12/17) TOC-1 Orange Book Handbook: Colorado Estate Planning Handbook Chapter 14 PRINCIPLES OF WILLS David K. Johns, Esq. Chapter 15 FIDUCIARIES Paul M. Smith, Esq. Chapter 16 PERSONAL PROPERTY Abby C. Boyd, Esq. Jonathan A. Lehmann, Esq. Chapter 17 REAL PROPERTY R. Sterling Ambler, Esq. (1931-2004) Matthew L. Trinidad, Esq. Chapter 18 POWERS OF APPOINTMENT Jessica L. Broderick, Esq. Chapter 19 ADMINISTRATIVE POWERS Sumi Lee, Esq. (Chapter Review, 2017) Chapter 20 DRAFTING AND INTERPRETATION OF DISCRETIONARY DISTRIBUTION STANDARDS Carol Warnick, Esq. Kelly Dickson Cooper, Esq. Rebecca Klock Schroer, Esq. Chapter 21 CONTRACTS TO WILL David M. Swank, Esq. Chapter 22 RESERVED Chapter 23 TESTAMENTARY TRUSTS David A. Turner, Esq. Chapter 24 INTER VIVOS TRUSTS Walter M. Kelly II, Esq. -
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.