Joint tenant with right of survivorship accounts are commonly used to transfer assets outside of probate.  They also tend to lead to a lot of estate litigation.  The concept of a JTWROS account is simple enough: the tenants have an equal right to the account’s assets and the survivor gets the assets when the other account holder dies.

What if someone doesn’t want to make an inter vivos gift of his or her cash or other valuable personal property, but instead wants it to be transferred outside of probate upon his or her death?  Can something like a joint tenant with right of survivorship safe deposit box work?  If your plan is to use a ‘joint’ safe deposit box, then you better pay careful attention to the safe deposit box contract.  At least that was what was decided by the Georgia Court of Appeals in Longstreet v. Decker.

We’ll start and end the week here at BryanCaveFiduciaryLitigation.com with powers of attorney.  In order to abuse a power of attorney, there actually has to be one.   In Kubek v. Jones, the United States District Court for the Middle District of Alabama recently determined that a decedent’s daughter forged a power of attorney so she could convert her father’s retirement benefits and life insurance policy to the exclusion of her stepmother.  And, as if the forgery wasn’t enough, she also exercised undue influence over her father.

Last week, the IRS issued a press release announcing its 2012 cost-of-living adjustments for retirement plans. The chart below reflects the qualified plan limits for calendar years 2009-2012.

Type of Limitation

2012

2011 

2010

2009

Elective Deferrals (401(k) and 403(b); not including adjustments and catch-ups)

$17,000

$16,500

$16,500

$16,500

457(b)(2) and 457(c)(1) Limits (not including catch-ups)

$17,000

$16,500

$16,500

$16,500

Section 414(v) Catch-Up Deferrals to 401(k), 403(b), 457(b), or SARSEP Plans (1)

$5,500

$5,500

$5,500

$5,500

SIMPLE 401(k) or regular SIMPLE plans, Catch-Up Deferrals

$2,500

$2,500

$2,500

$2,500

415 limit for Defined Benefit Plans

$200,000

A client recently asked me about the status of Georgia common law marriage, and in answering him, I thought it might be a good time for a reminder for all of us (including those in other states) that even if a state no longer recognizes common law marriage, usually such marriages remain valid if formed prior to the date of a statutory enactment prohibiting them. In addition, most states also recognize common law marriages formed in other states.

For example, the State of Georgia recognizes common law marriages formed prior to January 1, 1997, as well as valid common law marriages formed in other states. Under Georgia law, a valid common law marriage may be formed between a man and a woman if they have (1) the capacity to make a marriage contract, (2) actually entered into a nuptial contract (usually proven by evidence

A client recently asked me about the status of Georgia common law marriage, and in answering him, I thought it might be a good time for a reminder for all of us (including those in other states) that even if a state no longer recognizes common law marriage, usually such marriages remain valid if formed prior to the date of a statutory enactment prohibiting them. In addition, most states also recognize common law marriages formed in other states.

For example, the State of Georgia recognizes common law marriages formed prior to January 1, 1997 as well as valid common law marriages formed in other states.   Under Georgia law, a valid common law marriage may be formed between a man and a woman if they have (1) the capacity to make a marriage contract, (2) actually entered into a nuptial contract (usually proven by evidence of the couple holding themselves

There are so many ways to abuse powers of attorneys.  That’s why they’ve been referred to as “vehicles for fraud.”  While we’ve previously looked at ways in which they’ve been abused and our colleagues at Bryan Cave, Stephanie Moll and Mary McMath, have examined them in the context of “Who Can You Trust?” over at TrustBryanCave.com, the ways in which they can be abused are seemingly endless.  The reality is that these cases will continue to appear in increasing numbers as the Baby Boomers get older.

Last month, in Ward v. Patrizi, the Ohio Court of Appeals dealt with a a classic power of attorney abuse fact pattern.  A person who needed some help managing his bills designated a family member as his attorney-in-fact.  The attorney-in-fact dutifully paid the principal’s bills from his checking account, but, on the day

During a participant’s lifetime, his or her IRA is considered “retirement funds” that are protected from the participant’s creditors, even if the participant files bankruptcy.   But, what happens to the creditor protection after the participant’s death?  Is the IRA now protected from the beneficiary’s creditors?  Whether post-death creditor protection is available to inherited IRAs under the 2005 Bankruptcy Act has been the subject of a number of cases decided in the last year.

The argument made by bankruptcy trustees is that, on the death of the initial IRA owner, the IRA ceases to be “retirement funds”, as it is not the retirement funds of the beneficiary, and therefore loses the protection afforded to the IRAs under the Bankruptcy Code.

As a result of inflation, the IRS has increased the basic exclusion amount for the estate of a decedent dying in 2012 from $5,000,000 to $5,120,000.

http://www.irs.gov/pub/irs-drop/rp-11-52.pdf

For those of you who are named as Executor or Personal Representative under the Last Will and Testament of a friend or loved one who recently passed away, below is a simple “to do” list that lays out steps you should take in preparation for your initial meeting with an estate planning attorney. Please realize that this list is not exhaustive! Rather, it is intended to help you gather necessary materials and take actions that may enable you and the estate administration attorney to streamline the estate administration process.

• Cancel any club memberships in the decedent’s name.
• Prepare a list of all assets owned by the decedent and indicate whether those assets were held in the decedent’s sole name, in the name of the decedent’s revocable trust (if applicable), or held jointly with another person.
• Determine whether the decedent had any safe deposit boxes and, if so, prepare an
  

When trust beneficiaries sue their trustee, there will almost invariably be a demand for an accounting.  Even if the trust instrument relieves a trustee from having to provide regular accountings, the trustee is almost always going to be required to provide some accounting to the beneficiaries.

Trust litigation often deteriorates into fights over the depth of the accounting.  How far back must the accounting go?  What level of detail is required?  Must the trustee provide receipts for every expense?  In the case of a trust where the grantor is also a beneficiary during his or her lifetime, one of the most common disputes is whether the trustee must provide the remaindermen or successor income beneficiaries with an accounting for that period of time preceding the grantor’s death.

In In re Stephen M. Gunther Revocable Living Trust, the Missouri Court of Appeals decided that, with