Estate Practice & Elder Law Community Estate Planning

Deirdre Wheatley-Liss: Personal Injury Damages and Medicaid Liens - SCOTUS Decides

dwheatley@feinsuch.com (Deirdre R. Wheatley-Liss) — Wed, 15 May 2013 15:48:00 -0400

You have a horrific accident and are looking at a life of extreme medical care. The accident was caused by another person (drunk truck driver). You get a multi-million dollar award. Does the state that you live in get a share?

First, personal injury awards are generally free from income tax. Section 104 of the tax code excludes a personal injury award from income tax, so long it is for physical injury, physical sickness, emotional distress arising from these or for medical expenses.

So, it if's tax free, how does the state get involved? Because sometimes people who are injured don' t have money to pay for their

Spouse vs. Charity: Estate Tax Apportionment

jfarinacci@rmfpc.com (John G. Farinacci) — Tue, 14 May 2013 16:44:00 -0400

By John G. Farinacci, Esq.

Ruskin Moscou Faltischek, P.C.

We know that estate taxes are to be paid in the manner of a testator's choosing, but if the testator fails to make that choice, then estate taxes are "equitably apportioned among the persons interested in the gross tax estate." EPTL 2-2.8.

Normally, where there are charitable beneficiaries and a surviving spouse that is a US citizen, estate taxes are not apportioned to either of the two because the estate can avail itself of the charitable and marital deductions.

What happens, however, where (i) the testator's will provides

When is a Legacy from a Debtor to a Creditor Considered to be in Satisfaction of the Debt?

PeterKelly@placeholder.com (Peter K. Kelly) — Tue, 07 May 2013 17:33:00 -0400

By Peter K. Kelly

On occasion, testators during the course of their life make promises with respect to legacies or incur debts to people they intend to be beneficiaries of their Will. Executors sometimes take the position that a legacy is merely a satisfaction of a debt and is not deemed to be a gift in addition to the satisfaction of the debt.

The law is well-settled that "a legacy from a debtor to a creditor will be considered in satisfaction of the debt if the testator intended it to be." Matter of Revson, 86 A.D.2d 872, 874, 447 N.Y.S.2d 297 (2d Dep't 1982) [

First, this post is an except from my new book

Banks Often Refuse to Accept Powers of Attorney

One of the things that's becoming more and more frustrating for trusts and estates lawyers in Florida is the refusal of banks and other financial institutions to accept properly drafted powers of attorney.

A power of attorney is a document in which a person (the principal

Ask Liza: Probate for U.S. Assets; Estate Tax for Non-Resident Aliens

liza.hanks@gmail.com (Liza Weiman Hanks) — Tue, 12 Mar 2013 16:17:00 -0400

Dear Liza: My brother and I are dual citizens (Japan and US). We both reside in the US. Our Japanese mother recently passed away. She had some cash/ stock/ annuities/ mutual funds in the US, and some property in Japan that we will inherit jointly, with no disputes. She has a social security number and had a green card at one time, many years ago. She has not lived in the US for over 30 years. There was no will. Given that she was a non-resident foreign national, do we have to go through probate to distribute her US assets (around $650,000)? Sorry about your Mom. To settle your Mom's U.S.-based estate you are going to need

Type III Supporting Organizations - Now That The Dust Has Settled

john.dedon@ofplaw.com (John Dedon) — Tue, 12 Mar 2013 15:39:00 -0400

Type III Supporting Organizations ("SO"), which are those "operating in connection with" one or more supported organizations, are treated as public charities because they support one or more public charities. ("SO" herein refers exclusively to "Type III Supporting Organizations," there are also Type 1 and Type II supporting organizations, which are outside the scope of this discussion.) As public charities, they enjoy advantages not applicable to private foundations. Because of these advantages, and real and perceived tax abuse, SO's have been subject to much scrutiny over the last 10 or so years.

In the Pension Protection Act of

Ask Liza: Can I See the Will?

liza.hanks@gmail.com (Liza Weiman Hanks) — Sat, 09 Mar 2013 12:15:00 -0400

Dear Liza: My adult son just passed away. I would like to know whether, when his Will is probated, I will be able to see a copy?

My condolences on your loss. Your son's Will must be filed in the probate court

Bullivant Houser Bailey PC: In a Cold Sweat: Last Wishes Must be Considered in Estate Planning

BullivantHouserBaileyPC2@placeholder.com (Bullivant Houser Bailey PC) — Tue, 05 Mar 2013 15:52:00 -0400

By Darin Christensen

The Godfather of Soul, James Brown, lives on in music and culture, but a recent South Carolina Supreme Court ruling is adding estate planning to the legend's history. The Court overturned a settlement reached by the state attorney general, Brown's children, and his "wife." In its decision, the court also severely criticized the attorney general (the AG) for an unprecedented extension of his power.

Brown's will gave all his assets other than personal and household effects to an irrevocable trust. The irrevocable trust set aside $2 million for the education of his grandchildren and gave

Ask Liza: Your Mom May Need a Conservatorship

liza.hanks@gmail.com (Liza Weiman Hanks) — Tue, 05 Mar 2013 15:48:00 -0400

Dear Liza: My mother, suffering from Alzheimer’s, is completely mentally incompetent and living in a nursing home in Arkansas. I have only recently learned – surprise! – that she does not have a will. With my father and brother already deceased, I am her only legal heir, but I fear the difficulties in settling her estate upon her death. Is there anything I can do now to ease that transition, or I am simply going to have to bite the bullet and hire an attorney? I do hold her Power of Attorney, but I know that does not grant me the right to write a will on her behalf.

By: John G. Farinacci

Estate disputes have been called "divorces of siblings." Although sibling disputes over their parent's estates are common, there are many other relationships that result in estate disputes as well. However, the point of the saying is well taken in that complex family dynamics can make for extremely rancorous dealings between the survivors of a decedent. It is no surprise therefore that even before any real monetary

Widow / Girlfriend of Painter, Thomas Kinkade, Settle Their Dispute over Kinkade's Estate

klf@karplaw.com (karplaw) — Wed, 27 Feb 2013 12:14:00 -0400

Painter of Light's estate battle settled quietly, out of court

In my

The “Death Book” Sounds Like a Stephen King Novel, But It’s Actually a Helpful Estate Planning Tool

travis.burchart@lexisnexis.com (Travis Burchart) — Tue, 26 Feb 2013 10:22:00 -0400

Where do you keep all of your important financial information?

-In a cabinet stuffed with unmarked files?

-In a cardboard box full of unmanageable papers?

-In an old Cleveland Indian's suitcase like my dad once did (odd but true)?

There are multiple problems with any of these: clutter, disorder, locatability. In the event of your death, they all create stress and effort for your loved ones

The Estate Plans of George Washington and Abraham Lincoln

jfortenberry@fortenberrylaw.com (Jeramie Fortenberry) — Mon, 25 Feb 2013 07:47:00 -0400

Today [Feb. 18th] being President's Day (officially known as Washington's

An Introduction to the Problems of Estate Planning for Digital Assets

david@davidshulmanlaw.com (David A. Shulman) — Mon, 25 Feb 2013 07:38:00 -0400

Have you ever wondered what happens to your digital assets when you die?

By digital assets I mean your email, Facebook, Twitter and other accounts. What about your iTunes music purchases? You Amazon Kindle books? Are you allowed to transfer your music to your beneficiaries?

How do you access your bank accounts or credit card accounts? How do you pay your bills? How do you get your bills? Do you still write checks?

Have you thought about what will happen with all of that when

Can you disinherit an adult child?

klf@karplaw.com (karplaw) — Tue, 19 Feb 2013 07:35:00 -0400

Not all parents enjoy a warm relationship with all their children. I've met with many parents - some pained, some resigned, others angry - who have been estranged from their children for years. They may have tried reaching out and been spurned by kids who want nothing to do with them. Or the parents may find the child's behavior so egregious or heartbreaking that they have just given up.

Russian Revolution Redux

The long-ago Russian Revolution has been fought anew in the Federal courts in New York. The case is Konowaloff v. Metropololitan Museum of Art [

Most of the country's attention has been on federal estate tax changes made by the American Taxpayer Relief Act of 2012. Little focus

3 Asset Protection Tips for 2013

ghgiddens@trustcounselpa.com (Gregory Herman-Giddens) — Mon, 11 Feb 2013 07:32:00 -0400

As North Carolina business owners and other taxpayers adjust to the effects of the 2012 American Tax Payer Relief Act, they are starting to focus on asset protection strategies at the same time as minimizing taxes to the fullest extent possible.

It is well-understood by estate practitioners that a beneficiary of an estate should not serve as an attesting witness to a will. If he does, he or she is a competent witness for purposes of probating the will, however, under EPTL 3-3.2, the bequest under the will is void unless (i) two other persons who receive nothing under the will signed as attesting

Attorney Charged with Ethics Complaint over Probate Blog

david@davidshulmanlaw.com (David A. Shulman) — Wed, 06 Feb 2013 07:48:00 -0400

Every now and then, blogging will get someone in "trouble." See e.g. Rakofsky v. Internet, in which one Joseph Rakofsky sued a whole bunch of bloggers and other media over their posts criticizing among other things, his competency and ethics. I put the words "trouble" in quotes, because just because someone sues, it doesn't necessarily mean that the blogger was in the wrong. I myself have been contacted a few times

To The Victor Goes The Spoils: A Review of the Pro Tanto Rule

jenniferhillman@placeholder.com (Jennifer Hillman) — Mon, 04 Feb 2013 07:51:00 -0400

What's fair is fair - or at least that's the concept behind the pro tanto rule wherein a surcharge against a fiduciary is limited to the interest of the objecting party and not the other beneficiaries who stood by and failed to act in their own interest. In the absence of an objection, the account is established pro confesso as correct and proper, thus a beneficiary should not be permitted to do nothing and benefit from the fruits of another's time, effort and expended legal fees