Illinois Ruling Strikes a Blow at Asset Protection Trusts

ghgiddens@trustcounselpa.com (Gregory Herman-Giddens) — Wed, 07 Nov 2012 12:36:00 -0400

In Florida creditor protected homestead real property has been litigated for years in the Florida courts. Most recently, the 2^nd DCA in Geraci ex rel. Geraci v. Sunstar EMS, (Fla. 2d DCA June 27, 2012) [enhanced version available to Lexis.com subscribers] brought some much needed clarification

Standing to Object to Revocable Trust Transactions during Settlor’s Life

PeterKelly@placeholder.com (Peter K. Kelly) — Wed, 17 Oct 2012 09:29:00 -0400

Often the settlor of a lifetime revocable trust is the only person who has an interest in the income and principal of the trust during his or her lifetime. Sometimes the settlor of such a trust is the sole trustee or serves with another. In other circumstances, there are trustees other than the settlor. In any of these situations the trustees have a duty to comply with the directions of a settlor who has capacity to act even though the direction of the settlor is contrary to the terms of the trust or the trustees'

Naming a Trustee Is a Key Florida Estate Planning Decision

mjs@sarasotalaw.biz (Marc J. Soss) — Mon, 15 Oct 2012 10:51:00 -0400

Every Sarasota and Manatee County Florida resident leaving property and assets to their heirs at death, via a trust, must consider who will run the trust after they have passed away. The chosen fiduciary will be responsible for managing the assets the trust owns and making distributions to your loved ones in accordance with your final wishes.

Being a trustee requires a substantial time investment and the ability to put aside his or her personal feelings to do what they have been

Childless and Aging? Time to Designate a Caregiver

dgoldman@jacksonvillelawyer.pro (David Goldman) — Thu, 11 Oct 2012 14:19:00 -0400

Phyllis Korkki with the NY Times wrote an article dealing with some of the problems our aging society has when they have no children or natural caregivers and ways to help deal with it. In the article, she quotes me in dealing with some ways you can use legal documents that can be prepared by an attorney to deal with giving someone legal rights to help you make decisions if and when you need it.

These documents can also help avoid a guardianship and limit the ability for some to hijack your assets and use them up with unnecessary fees.

Follow this link to the NY Time article or contact us to discuss how we can provide documents to help manage these situations for your, your friends, or your family.

View more from the

James Cox on Uniform Trust Code in Virginia and West Virginia

Wed, 03 Oct 2012 10:17:00 -0400

By James Cox*

In part as a result of the increasing use of trusts in estate planning and the lack of a comprehensive codification of the law of trusts, the Virginia Assembly adopted effective July 1, 2006, the Virginia version of the Uniform Trust Code (UTC). West Virginia followed suit, and adopted the Uniform Trust Code effective July 1, 2011. The following Emerging Issues Analysis explores the provisions of the Uniform Trust

Florida Court Finds that Settlor Lacked Requisit Capacity to Execute Trust Amendment

dgoldman@jacksonvillelawyer.pro (David Goldman) — Tue, 02 Oct 2012 14:30:00 -0400

In the Florida case of Jervis v. Tucker, 37 Fla. L. Weekly D349 (Fla. 4th DCA 2012) [enhanced version available to lexis.com subscribers], Bernice J. Meikle executed a revocable trust agreement in 1991, which she subsequently amended by executing a first amendment. Her trust, as amended by the first amendment, provided that Meikle's power to revoke or amend the trust would be suspended upon her being "adjudicated incapacitated by a court of appropriate jurisdiction." The trust further provided that Meikle's powers could be restored by an order of an appropriate court having jurisdiction over Meikle, or upon the issuance and receipt by the Trustee of a written opinion from two licensed physicians after their examination of Meikle.

Meikle was adjudicated incapacitated

New York Appellate Court Broadens the Powers of an Attorney-In-Fact

jenniferhillman@placeholder.com (Jennifer Hillman) — Tue, 25 Sep 2012 09:00:00 -0400

By: Jennifer F. Hillman, Esq.

A recent decision out of the New York Appellate Division Second Department broadened the range of powers enumerated to an attorney-in-fact to include the ability to amend a previously executed irrevocable inter vivos trust.

The facts in Perosi v. LiGreci, 948 N.Y.S.2d 629, 2012 N.Y. App. Div. LEXIS 5448, 2012 NY Slip Op 5533 (2d Dep't July 11, 2012) [Florida's homestead exemption also protects spouses and children of decedents: a spouse cannot transfer the property by will if survived by a spouse or minor child. While this rule often plays a positive role for families of decedents, certain cases show potential perils

Who Owns Your iTunes Account? and Bruce Willis

dgoldman@jacksonvillelawyer.pro (David Goldman) — Mon, 10 Sep 2012 10:19:00 -0400

Last week [Aug. 27 - 31] there were several articles which brought light to many that our online identities are just licenses which will expire upon out death. While this concept is new to some, most lawyers understand this. Unfortunately there appear to be some who do not understand that we are dealing with licenses which expire upon death, because they are recommending that their clients deal with these assets using a traditional will. While they understand that a will only deals with assets that exist after death, they probably do not understand that your iTunes , Amazon , Gmail, Facebook, and Twitter accounts are licenses, which if owned individually, will not survive the death of the creator.

A Trust or Business entity can survive death! They are fictitious entities which are created by state statutes which do not have to dissolve upon death. A trust generally has provisions for beneficiaries unlike a business entity.

Last weekend the Wall Street Journal and several

Morrison & Foerster LLP: Decanting a California Trust

MorrisonFoersterLLP@placeholder.com (Morrison and Foerster LLP) — Thu, 06 Sep 2012 14:10:00 -0400

By Joshua Glucoft,* Morrison & Foerster LLP

In the administration of an irrevocable trust, situations can arise that were beyond the anticipation of the trustor. Therefore a trustee may want to "decant" a trust by transferring funds from one trust to another with preferable terms. The trustee may be unsure, however, as to when the trustee is authorized to decant the trust. "A trustee's powers include those specified

Effective Transfers to a Trust

jenniferhillman@placeholder.com (Jennifer Hillman) — Wed, 29 Aug 2012 06:54:00 -0400

In New York, a lifetime trust shall be valid as to any assets that are effectively transferred to the trust. However, a transfer is not accomplished by a simple recital of assignment or a listing of an asset on Schedule A. Matter of Rothwell, 189 Misc. 2d 191, 730 N.Y.S.2d 664 (Sur. Ct. Dutchess County 2001) [enhanced version available to lexis.com subscribers

McNees Wallace & Nurick LLC: Pennsylvania Supreme Court Changes Rule On Dual Commissions

McNees@placeholder.com (McNees Wallace & Nurick LLC) — Wed, 29 Aug 2012 06:45:00 -0400

By Kimberly M. Colonna

For well over 60 years, Pennsylvania law has provided that, for trusts created before 1945, an entity that was paid a commission as the estate executor was not entitled to a trustee's commission paid from the principal of the trust. A 2011 decision from the Pennsylvania Supreme Court has changed this rule in a way that benefits trustees.

A Pennsylvania statute that was in effect until 1945 provided that where the same person fulfilled the duties of executor and

Amendment of Trust by Grantor’s Attorney-in-Fact

PeterKelly@placeholder.com (Peter K. Kelly) — Wed, 08 Aug 2012 08:17:00 -0400

An irrevocable and unamendable trust can be revoked or amended during the life of the grantor under certain limited circumstances. New York's Estate Powers and Trust Law (EPTL) provides in Section 7-1.9 that upon the written acknowledged consents of all persons beneficially interested in a trust, a grantor may revoke or amend the whole or any part of a trust by his or her written acknowledged instrument.

A New York Appellate Court has recently reversed a trial court decision and permitted an attorney-in-fact for the grantor of a trust to amend

Intentionally Defective Grantor Trusts on the Chopping Block?

ghgiddens@trustcounselpa.com (Gregory Herman-Giddens) — Wed, 11 Jul 2012 14:54:00 -0400

Persons who have relied upon certain trusts as a means of limiting estate taxes upon their death might have cause for concern regarding an Obama administration budget proposal for 2013. While the current proposal remains very broad, and thus might be subject to change down the road, as it stands now, it would require those who set up "grantor trusts" to include trust assets in their own estates for estate tax purposes.

Current tax policy effectively keeps income tax rules and estate tax rules separate. With proper

Troutman Sanders LLP: New Virginia Law Authorizes Trust Decanting, Allowing A Trustee To Change Some Provisions of An Irrevocable Trust

Troutman.Sanders@placeholder.com (Troutman Sanders) — Wed, 11 Jul 2012 11:00:00 -0400

By Carol F. Burger, Molly F. James, Melissa Roberts Tannery and Tania S. Sebastian

Effective July 1, 2012, Virginia has a new law which permits

Troutman Sanders LLP: Virginia Trust Law to Help Protect Assets from Creditors While Still Enjoying the Assets Takes Effect on July 1, 2012

Troutman.Sanders@placeholder.com (Troutman Sanders) — Mon, 09 Jul 2012 05:00:00 -0400

By David N. Anthony, Melissa Roberts Tannery and Tania S. Sebastian

Beginning July 1, 2012, Virginia will allow its residents to create qualified self-settled spendthrift trusts and achieve some protection from

Troutman Sanders LLP: Virginia Will Become Friendlier to Trustees on July 1, 2012

Troutman.Sanders@placeholder.com (Troutman Sanders) — Fri, 29 Jun 2012 13:15:00 -0400

By David N. Anthony, Melissa Roberts Tannery and Tania S. Sebastian

A change in Virginia law effective July 1, 2012, will limit trustee liability with respect to directed trusts, which is good news for corporate and

Williams Mullen: Virginia Enacts Trust Decanting Statute

WilliamsMullen@placeholder.com (Williams Mullen) — Wed, 13 Jun 2012 03:41:00 -0400

BY: FARHAD AGHDAMI & JEFFREY D. CHADWICK

On April 4, 2012, Governor McDonnell signed Senate Bill 110 into law, which allows trustees to exercise the power to distribute trust income or principal to or for the benefit of a beneficiary by distributing the assets to a new trust. The act of distributing trust assets to a new trust is commonly referred to as "decanting." The best way to

Margaret M. Hand on California Trustee's Duty to Account

MargaretHand@placeholder.com (Margaret M. Hand) — Mon, 11 Jun 2012 10:57:00 -0400

A trustee's duty extends beyond liability for breach of a fiduciary duty. One of the trustee's primary responsibilities is to provide information and account to the trust's beneficiaries. Discharging this duty to account benefits the trustee as well as the beneficiaries. The Probate Code governs the trustee's actions in California. In this Analysis, Margaret M. Hand discusses a trustee's duty to account. She writes:

BY: FARHAD AGHDAMI & JEFFREY D. CHADWICK

On April 4, 2012, Governor McDonnell signed Senate Bill 11 into law, which permits the creation of "self-settled spendthrift trusts" in Virginia. A self-settled spendthrift trust is an irrevocable trust in which the grantor retains a beneficial interest, with such interest being entitled to spendthrift protection against the claims of the grantor's creditors. In other words, through a properly structured self-settled

Estate Practice & Elder Law Community Trusts

Trust Protectors in North Carolina Trusts

Illinois Ruling Strikes a Blow at Asset Protection Trusts

Standing to Object to Revocable Trust Transactions during Settlor’s Life

Naming a Trustee Is a Key Florida Estate Planning Decision

Childless and Aging? Time to Designate a Caregiver

James Cox on Uniform Trust Code in Virginia and West Virginia

Florida Court Finds that Settlor Lacked Requisit Capacity to Execute Trust Amendment

New York Appellate Court Broadens the Powers of an Attorney-In-Fact

Who Owns Your iTunes Account? and Bruce Willis

Morrison & Foerster LLP: Decanting a California Trust

Effective Transfers to a Trust

McNees Wallace & Nurick LLC: Pennsylvania Supreme Court Changes Rule On Dual Commissions

Amendment of Trust by Grantor’s Attorney-in-Fact

Intentionally Defective Grantor Trusts on the Chopping Block?

Troutman Sanders LLP: New Virginia Law Authorizes Trust Decanting, Allowing A Trustee To Change Some Provisions of An Irrevocable Trust

Troutman Sanders LLP: Virginia Trust Law to Help Protect Assets from Creditors While Still Enjoying the Assets Takes Effect on July 1, 2012

Troutman Sanders LLP: Virginia Will Become Friendlier to Trustees on July 1, 2012

Williams Mullen: Virginia Enacts Trust Decanting Statute

Margaret M. Hand on California Trustee's Duty to Account