In the previous “Last Week in Estate Planning” entries, I placed the “Post of the Week” at the bottom as a way of building suspense. However, I have been advised that burying the lead in a blog post is perhaps imprudent.
So now, the “Post of the Week” goes first, which is especially appropriate given the strong resonance of this week’s winner.
Top Posts and Articles of the Week
Post of the Week
“My Disability Plans, Tested”, Danielle G. Van Ess, Esq., DGVE Law.
- A heartbreaking yet courageous post, exemplifying Ms. Van Ess’ passion for her family and her work, all while utilizing the experience of her trying times for the benefit of others. Condolences to Ms. Van Ess and her family.
“From Washington”, Dena Schneider, Estate of Denial.
- A passionate post calling for the banning of guardianships for the elderly.
- Ms. Green expands on the ideas raised in Ms. Dagher’s recent article.
“To Trust or Not to Trust…Part 5: Age and Time Reasons to Not Create a Revocable Living Trust?”, Christopher Guest, Esq., VA Estate Planner.
- With so many posts and articles throughout the web that support living trusts, Mr. Guest has provided a refreshing viewpoint of when they might not be appropriate.
“Twenty-Five Documents to Leave Behind for Loved Ones”, Prof. Gerry W. Beyer, Wills, Trusts & Estates Prof Blog – citing “The 25 Documents You Need Before You Die”, Saabira Chaudhuri, The Wall Street Journal.
- Professor Beyer’s post lists the 25 documents discussed in Ms. Chaudhuri’s article.
Top Stories of the Week
In Hawaii: “Hawaii’s New Asset Protection Laws”, Prof. Gerry W. Beyer, Wills, Trusts & Estates Prof Blog – citing “Hawaii Amends New Asset Protection Law In Bid to Grab Trusts in Other States”, Scott Martin, The Trust Advisor Blog.
- Last year, Hawaii passed an asset protection statute that was meant to attract large investment accounts into Hawaii-based financial institutions. Mr. Martin discusses how Hawaii has further loosened its rules because the anticipated inflows of cash never occurred.
“Supreme Court Issues Opinion on the Application of the Fiduciary Exception to Attorney-Client Privilege in the Trust Context”, Prof. Gerry W. Beyer, Wills, Trusts & Estates Prof Blog – citing “The U.S. Supreme Court Addresses Application of the Fiduciary Exception to the Attorney-Client Privilege in the Trust Context”, Carrie L. Huff, Esq., Greta E. Cowart, Esq., John M. Collins, Esq., Haynes and Boone’s Newsroom.
- Last month, the U.S. Supreme Court ruled against the Jicarilla Apache Nation by stating that communications between the United States and its own attorneys can be privileged where the U.S. is serving as trustee of a trust on behalf of a Native-American Tribe.
- The United States presently holds funds in trust for the Jicarilla Apache Nation, a Native-American tribe. The Jicarilla Nation sued the United States for mismanagement of the trust funds.
- The Jicarilla Nation claimed that communications between the United States and its attorneys should not be confidential, based on the “fiduciary exception” to the attorney-client privilege, as described here:
- In all states, the attorney-client privilege preserves the confidentiality in conversations between attorneys and clients.
- A fiduciary is a person or entity controlling a financial account on behalf of beneficiaries (a “trustee” is one example of a fiduciary). In all states, a fiduciary has a legal duty to always serve in its beneficiary’s best interests.
- Most states presume that if a fiduciary wants to speak confidentially with an attorney, it must be anticipating some kind of trouble, such as a lawsuit. A privileged conversation with an attorney would serve the fiduciary’s own, and not the beneficiary’s, best interests.
- Therefore, most states do not allow a fiduciary’s conversations with its attorney to be confidential or privileged.
- The U.S. Supreme Court disagreed with the Jicarilla Nation on this issue.
- The linked articles discuss the reasoning behind the U.S. Supreme Court’s decision.
“IRS Cracking Down on Taxpayers Failing to File Form 709, United States Gift (and Generation-Skipping Transfer) Tax Return”, Vanessa van der Have, Altman Speaks.
- Any gifts given to another person that exceed the annual exclusion of $13,000 must be reported on federal Form 709. This is true even if no tax is owed because of the individual’s $5 million lifetime exemption from federal gift tax.
- Ms. van der Have’s post warns that to detect failures to file the Form 709, the IRS is attempting to look at real estate transfers between parents and children, especially where property changes hands for little to no value.
Entertainment and Human Interest
“Zsa Zsa’s Heirs from 9 Marriages Line Up at Deathbed to Claim Her Loot”, Scott Martin, The Trust Advisor Blog.
“Former Broadway Star at Center of a Bitter Family Feud”, Prof. Gerry W. Beyer, Wills, Trusts & Estates Prof Blog – citing “Love and Inheritance: A Family Feud”, John Leland, The New York Times.
- Discusses the years-long and expensive family battle involving 94-year-old actress Celeste Holm, her 48-year-old husband and her two sons.
“Article on Wyoming as a Leading Trust Situs Jurisdiction”, Prof. Gerry W. Beyer, Wills, Trusts & Estates Prof Blog – citing Christopher M. Reimer, Esq., The Undiscovered Country: Wyoming’s Emergence as a Leading Trust Situs Jurisdiction, 11 Wyo. L. Rev. 165 (2011)
“Article on North Dakota’s Adoption of the Uniform Trust Code”, Prof. Gerry W. Beyer, Wills, Trusts & Estates Prof Blog – citing Kristen Franzen, Esq. and Prof. Bradley Myers, “Improving the Law Through Codification: Adoption of the Uniform Trust Code in North Dakota”, 86 N.D. L. Rev. 321 (2010).
Please nominate any top estate planning posts or articles for the week of July 10 to July 16, 2011 in the Comments section below.