Saturday, August 30, 2014
A recent case from the Supreme of Mississippi held that forfeiture provisions in wills in Mississippi are enforceable unless the will contest has been founded upon probable cause and made in good faith.
This decision comes after siblings Bronwyn Benoist Parker and William Benoist litigated the will of their father, who granted significantly more property to William and less to Bronwyn than a previous will executed in 1998. Bronwyn alleged William had unduly influenced their father, who was suffering from dementia and drug addiction, into creating a new will, which included a forefeiture clause that revoked benefits to any named beneficiary who contested the will.
The Supreme Court of Mississippi held that Bronwyn had sufficiently shown that their suit was brought in good faith and founded upon probable cause. Thus, the Court reversed the decision of the Chancery Court, allowing Bronwyn to inherit in accordance with her father’s 2010 will. Parker v. Benoist, 2014 WL 4243763 (Miss.)
Special thanks to Howard M. Zaritsky for bringing this case to my attention.
I recently published an article entitled, A Guide to Fiduciary Selection, Estate Planning Developments for Texas Professionals (July 2014). Provided below is the abstract from SSRN:
Your clients must exercise great care in selecting fiduciaries such as executors, trustees, and agents. These decisions may affect the client and the client’s family members for many years. Decisions regarding the appropriate persons to select are, naturally, for your clients to make. However, you have a duty to explain to your clients the factors they should consider before making designations in wills, trusts and powers of attorney. This article focuses on these considerations.
The article begins with a discussion of legal criteria based on the law of Texas.
The remainder of the article has general application and discusses the factors from a practical standpoint which a client should consider as well as the pros and cons of using a corporate fiduciary and of appointing co-fiduciaries.
The third edition of the Tax Management Portfolio, Estate Planning, has been published by William P. Streng, Esq. (Vinson & Elkins Professor of Law, University of Houston Law Center). This Portfolio provides helpful guidance for estate planning professionals. Provided below is a description of the Portfolio from Bloomberg BNA.
Estate Planning is designed as an authoritative and practical working tool for attorneys, accountants, and others involved in estate planning practice. The basic estate, gift, and trust planning concepts are presented in a descriptive and conveniently accessible form. Written by William P. Streng, Esq., Vinson & Elkins Professor of Law, University of Houston Law Center, and Consultant, Bracewell & Giuliani LLP, this Portfolio analyzes the development of an estate planning strategy; fundamentals of the federal transfer tax system and related federal income tax rules; lifetime donative asset transfers; gratuitous property transfers at death; generation-skipping transfers; special property transfer planning considerations (e.g., community property, life insurance, charitable transfers, closely held corporations); and post-mortem planning.
The ABA Section of Taxation is offering the 2014 Joint Fall CLE Meeting, September 18-20, 2014, at the Sheraton Denver Downtown Hotel in Denver, Colorado. Registration and fees are due by September 11, 2014. Here is why you should attend:
Join us and take advantage of the opportunity to meet with the country’s leading attorneys and government officials to discuss the latest federal tax policies, initiatives, regulations, legislative forecasts and planning ideas. In addition, you will have the opportunity to earn valuable CLE and ethics credits and network with Tax Section and Trust and Estate Division members and government guests. The Sheraton Downtown will serve as the host hotel.
Friday, August 29, 2014
A recent case decided by the Georgia Court of Appeals serves as an important reminder that probate court litigation differs procedurally from other types of litigation. Thus, when confronted with a will contest or other probate proceeding, it is best to consult with someone who specializes in that type of fiduciary litigation.
In In re Estate of Loyd, an heir of Virginia Childs Loyd, Jack attempted to object to a petition to probate the will on grounds of undue influence. The trial court dismissed Jack’s caveat as untimely and the appellate court subsequently agreed.
After the petition to probate the will was filed, the probate court ordered heirs to file any objections to the petition within 13 days. The executor sought to dismiss Jack’s caveat as untimely and it was dismissed because Jack missed the deadline.
Although this was a short amount of time to answer, the court was persuaded by Jack’s argument that he was away from his residence and had no actual knowledge of the petition. He was therefore barred from challenging the will.
See Luke Lantta, In Georgia, The Time to File A Caveat May Be Short And Unforgiving, Brian Cave Litigation, Aug. 27, 2014.
Rahul Suresh Sapkal (University of Hamburg Institute of Law and Economics; Erasmus University Rotterdam) recently published an article entitled, From Mother to Daughter: Do Equal Inheritance Property Laws Reform Improves Female Labour Supply, Female and Their Daughter’s Educational Attainments in India? (July 2014). Provided below is the abstract from SSRN:
In 2005, India witnessed a constitutional amendment to the Hindu Succession Act of 1956, giving daughters the equal inheritance rights as sons. However, fives states in India had earlier amended the same Act in favour of daughters. Using this exogenous variation created by legislation on inheritance property rights, I exploit a difference-in-difference estimation strategy to estimate the impact of reform on female education, labour force participation and their daughter’s educational attainment. The study find that women who were exposed to the reform experience increase in their average schooling years and average months of labour force participation. It is interesting to note that this positive effect is also observed for their daughter’s educational attainment. Results obtain from this study are consistent with complementary and equalising effects hypothesis.
A brokerage window, also known as a self-directed brokerage account, allows you to invest in almost anything in your 401(k) retirement account. While this may seem obvious, the Department of Labor is questioning whether it is helpful or harmful to investors saving for retirement and whether employers should be liable for employee’s actions.
Some 401(k) plans allow participants access to brokerage windows in addition to basic investment choices. Yet, the nanny state position is that employees will make careless mistakes if given free reign to invest their 401(k) money. Alternatively, it is argued that brokerage windows provide investors the ability to build a better retirement nest egg.
So, are new safeguards needed? This is what the DOL wants commentators to decide this fall. The DOL wants to ensure employees are not exposed to undue risks from brokerage windows and employers properly understand the scope of their ongoing responsibility with respect to the windows.
See Ashlea Ebeling, DOL Questions 401(k) Brokerage Windows, Forbes, Aug. 28, 2014.
In his new book entitled, Unretirement, Chris Farrell asserts that developing skills can help you earn income past traditional retirement age offers a better return on investment than any other financial instrument.
Farrell defines “unretirement” as the financial impact of working longer. If people can work into their 60s, they will make much more in the course of a year than they could from saving. This changes the financial landscape, as people will no longer need to tap into their retirement nest egg during these years.
The first place to being is by asking yourself what kind of work you want to be doing. “Don’t romanticize any particular idea—research it. Think about how you can take your existing skills and move into a different sector of the economy with those.”
The notion of “unretirement” further suggests that you can wait to claim social security, which in turn creates a wealthier society, healing the economic crisis.
See Mark Miller, Why ‘Unretirement’ Might Be Your Best Retirement Strategy, Reuters, Aug. 28, 2014.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Filling out a standard form at a bank to create a revocable trust can save time and money, but can also cause unexpected problems down the line. An individual may believe that everything is in order and the trust is ready to go when they sign on the dotted line. However, standard forms do not account for individual life circumstances, such as multiple marriages and children with special needs. The trust also may shockingly have nothing in it, which will create serious problems if the empty trust is discovered only after its use becomes a necessity.
See George M. Fox, The Black Hole Revocable Trust, Smoke Signals, 2014.
A Philadelphia Court of Common Pleas recently considered a request from the trustees of the Stephen Girard Trust, a charitable trust that created Girard College, to end the school’s residential and high school programs. Girard College was originally created through the detailed will of Stephen Girard to educate, house, clothe, and feed orphan boys. Over the years, the school has developed and changed away from Girard’s original intent for the school. The school now allows minority and female students. However, the Philadelphia court’s decision denied the trustees' request to cut the requested programs due to how inconsistent the changes would be to the intent reflected in what the court described as “the most litigated will in history.”
See Katherine C. Pearson, The Latest Ruling on “The Most Litigated Will in History,” Elder Law Prof Blog, Aug. 28, 2014; Neil E. Hendershot, Philadelphia Court Upholds Stephen Girard’s Intentions, PA Elder, Estate & Fiduciary Law Blog, Aug. 27, 2014.