The Qualified Terminable Interest Property (QTIP) Trust was a creation of ERTA-1981 pursuant to IRC § 2056(b)(7) which qualifies for the marital deduction, even if the surviving spouse is not given a general power of appointment during life or at death. Under a QTIP Trust, the surviving spouse need only be given all the income for life, which makes it similar to the traditional general power of appointment trust...

YEAR-END TAX PLANNING 2015 By David M. Watts, Jr. As the end of the year approaches, it is a good time to think of planning moves that will help lower your tax bill for this year and possibly the next. Factors that compound the challenge include turbulence in the stock market, overall economic uncertainty, and Congress’s failure to act on a number of important tax breaks that expired at the end of 2014. Some...

Dear Liza: We are a married couple in our early and mid 30s with a one year old son living in Southern California. I have been looking at setting up a trust and/or will for our little family but not sure what is needed in our scenario. My husband and I each own a home in our name (bought before we got married). My husband and I plan to create a living trust for each of us and transfer the property in our respective...

Dear Liza: Can someone with stage four Parkinson’s change the beneficiary on their life insurance? My answer is: it depends. That’s a pretty lawyerly answer, I know, but the thing is that whether or not someone has legal capacity is fact-dependent and unique to each individual, and, in addition, it depends on what kind of legal document a person is signing. Changing a beneficiary designation is changing...

My March 30, 2015 Post, discussed how Kris Jenner, the matriarch of the Kardashian family, was confused about the difference between 1) her Will and the role of the Executor, and 2) her Living Will and the role of the agent. In an episode of "Keeping Up with the Kardashians," Kris told her former husband, Bruce Jenner at the time, that he was no longer the "Executor of my living will." Kris said "if...

The IRS recently announced the inflation adjusted figures for gift and estate tax exemption amounts for 2016. The annual exclusion amount remains at $14,000. That is the amount that can be gifted to US citizens each year without eroding the per person exemption amount. The exemption amount increases from $5,430,000, to $5,450,000, or $10,900,000 for a married couple. Thus, married couples with less than $10, 900...

By David Shulman The Uniform Law Commission is a non-profit organization that drafts “model” or “uniform” laws that can be adopted by state legislatures. Individual legislatures can then adopt the act as is, or can tweak it as they see fit. I have previously written about the Uniform Fiduciary Access to Digital Assets Act. The American Bar Association appointed me to be one of its representatives...

By Vance E. Antonacci | One of the most important factors to consider in any business succession plan is the timing of the transition of ownership. Whether a sale or a gift (or combination of the two), no transition should occur before the next generation of leaders is identified and developed. However, a business owner should not unduly delay once the succession planning stars have aligned. Interest Rates Many...

By Jennifer F. Hillman, Esq. In the past, I have written about the additional disclosures necessary when the nominated executor under a will is also the attorney-drafter (or an employee of that attorney). [i] If an attorney-executor fails to comply with the requirements of New York Surrogate’s Court Procedure Act (“SCPA”) §2307-a, they forfeit one-half of their statutory commission. In Matter...

By David Shulman It looks like Google recently updated the support page in which a person can request information regarding a deceased user’s account. Now the options are: Close the Account of a deceased user Submit a request for funds from a deceased user’s account Obtain data from a deceased user’s account Notify Google that a user is deceased Resolve a potential hijacking of a deceased...

By Linda B. Hirschson and Shifra Herzberg The proliferation of technology has moved communication, banking, networking, games, photos and music to the digital arena. In this Emerging Issues Analysis, Linda B. Hirschson, a shareholder in Greenberg Traurig's New York office and chair of the New York trusts and estates practice, and Shifra Herzberg, an associate with the trusts and estates practice in the firm's...

By Elaine Gagliardi Proposed treasury regulations have been promulgated to clarify the interaction of the I.R.C. Section 1022 carryover basis rules with other sections of the Internal Revenue Code. In this Emerging Issues Analysis, Elaine Gagliardi, a professor of law at the University of Montana School of Law, writes: “The Internal Revenue Service, in Revenue Procedure 2011-41, provided guidance on the interaction...

By John Dugan Massachusetts law provides for the execution, administration and governance of health care proxies. A health care proxy is a written instrument signed by a competent adult appointing another competent adult to make health care decisions in the event of his or her subsequent incapacity. This Emerging Issues Analysis, written by John Dugan, a partner at Doherty, Ciechanowski, Dugan and Cannon P.C. in Franklin...

By Honorable Jennifer Rivera Ulwick Unlike conservators, guardians do not handles finances, acting as conservators as they may have in the past when appointed as "guardian of the estate." Unless otherwise provided by the court, the guardian is limited to making decisions regarding the incapacitated person's support, care, education, health and welfare. This Emerging Issues Analysis written by Jennifer...

Dear Liza, My father passed away recently, and all of his and my mom’s assets are held in a living trust (except an individual checking account), of which I am now the Trustee. A few collection agencies are now contacting me about collecting on some credit card balances, which are fairly significant. From what I’ve read online, it sounds like debt collectors might not be able to lay any claims against the...

A common estate planning strategy for people with taxable estates is to have an irrevocable trust own life insurance, rather than owning the insurance themselves. Even with the current amount an individual can protect from estate tax at $5,340,000, some affluent taxpayers will benefit if irrevocable trusts own the life insurance. For example, assume Mr. Client has a $1million policy on his life. Upon his death, if he...

By Shirley L. Kovar | In this Emerging Issues Analysis, Shirley L. Kovar, a partner in the Estate & Trust Litigation Practice and International Private Client groups at Henderson, Caverly, Pum & Charney, LLP in San Diego, identifies some of the ways IIEI differs from traditional inheritance law, highlighting Beckwith v. Dahl [ enhanced opinion available to lexis.com subscribers | Lexis Advance ] as an example...

Perhaps the primary estate planning strategy utilized in reducing gift and estate tax for several decades has been taking advantage of discounts for family transfers of closely held businesses and real estate interests. These same discounts also apply to marketable securities if packaged properly in an LLC or a Family Partnership. The value of the transferred interests are often in the form of non-voting stock or a...

ASSET PROTECTION STRATEGIES by David M. Watts, Jr. Durng the estate planning process a question we are frequently asked relates to the best way to protect assets from creditors. The easy answer, although not the most satisfactory, is to give the assets in question away, before any claims arise . If you do anything to impair the rights of your unsecured creditors, then the Courts will simply undo what you have...

By Katten Muchin Rosenman LLP On June 26, 2015, the US Supreme Court ruled that a state ban on same sex marriage is unconstitutional, in violation of the equal protection clause of the Fourteenth Amendment. The landmark ruling in the combined cases known as Obergefell v. Hodges [1] struck down every state ban on same-sex marriage in the country, and by virtue of this ruling, Section 2 of the Defense of Marriage Act...

Dear Liza, My father passed away in 2002 when the federal estate tax limit was $1million. At that time my mother chose to put their home in the Bypass Trust. She has now passed and the home is worth $1.4 million. Do we inherit tax free or pay taxes on the amount over $1million? It’s nice when I get a question that has a clear-cut answer AND an answer that most people would be happy to recieve. And this one’s...

By John G. Farinacci Estate litigators see a wide variety of disputed issues since the affairs of decedents are as diverse as the types of people they were during their lives. However, we also see many of the same or similar fact patterns. One of these involves disputes over whether the addition of joint or co-owners to bank accounts were intended merely as a matter of convenience. Section 675 of the Banking Law...

Dear Liza: A friend of mine is considering a living trust. The only property he has is a coin collection maybe worth around $15,000. He has an adult daughter who he doesn’t communicate with and does not want her to get anything. He would like to leave the collection to me. Is a living trust a good way to go listing me as the trustee or the beneficiary? Or is doing a Will just as good? If the only property that your...

Dear Liza: My dad named his mother as his beneficiary, but she passed away in 2004. My dad died in 2013 but didn’t change his beneficiary. I am my father’s only child and he has no wife, so who gets the money ? When a person dies and there’s no surviving beneficiary named for an account, the assets would go that person’s “estate.” You don’t say what kind of account this is, but...

Dear Liza: Does a person receiving a gift from a sibling in another country have to pay gift tax on that gift in the United States? In the United States, gifts are not considered ordinary income, so you don’t have to report them or pay income tax on the amount you’ve received. (If a US citizen, the person who gave the gift, called the donor, has to report all gifts over $14,000 per person per year, and will...