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New Illinois Estate Tax Law Signed Into Law

On December 16,  the Governor of Illinois, Pat Quinn, signed into law a bill that, among other things, raises the Illinois estate tax exclusion amount, raising the amount that an Illinois resident can transfer at death without the imposition of Illinois estate tax.

Under current law, an Illinois resident has an estate tax exclusion amount of $2,000,000 for purposes of the Illinois estate tax.  Under the new law, the $2,000,000 exclusion amount remains in effect for decedents dying prior to January 1, 2012.  Those dying on or after January 1, 2012, and prior to January 1, 2013, will have an Illinois estate tax exclusion amount of $3,500,000.  Those dying on or after January 1, 2013 will have an Illinois estate tax exclusion amount of $4,000,000.

While the increased Illinois exclusion still does not match the federal estate tax exclusion amount, as many other states do, it does reduce the amount

Revoked Will And Handwritten Notes Were Not A Contract To Make A Will

December 22, 2011

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It’s actually one of the first cases law students learn about in their contracts class – a distant relative comes to live with and care for a sickly aunt, sister, or uncle in alleged reliance on the sickly relative’s promise to leave the helpful relative something from the sickly one’s estate.  The sickly relative dies, leaving the helpful relative nothing.  Can the helpful relative sue to enforce the promise?  As with all things in the law, it depends.

In Georgia, if you want to enforce that promise, you’d have an easier time if the promise was made before 1998.  If after 1998, then you had better follow the pretty clear statutory requirements for a contract to make a will because those requirements supersede other equitable statutes and are strictly enforced.

In Newton v. Lawson, the Georgia Court of Appeals reminded us of how strict the Georgia statutory requirements are for making an enforceable contract

Connecticut Conservator Of The Person Lacked Standing To Bring Lawsuit On Behalf Of Ward

December 21, 2011

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Guardians and conservators don’t get appointed because things are going swimmingly for the ward.  In a good many of these cases, a guardian and conservator are appointed because there has been some type of financial exploitation of the ward.  Once the ward has been protected going forward, the question turns to how to try to recover what the ward has lost from the exploitation and who has standing to bring the claims on behalf of the ward?

When it comes to a ward’s financial losses, in Kawecki v. Saas, the Appellate Court of Connecticut clarified that it is the conservator of the estate – and not the conservator of the person (similar to a guardian in other jurisdictions) – who has standing to bring a lawsuit to recover the ward’s financial losses.

Administering an Estate for the First Spouse of a Married Couple to Pass Away in 2011 or 2012

If you are administering an estate for the first spouse of a married couple to pass away in 2011 or 2012, you should consider whether or not to make a “portability election” under Section 2010(c)(5)(A) of the Internal Revenue Code.

Section 2010(c), as recently amended, generally allows a surviving spouse of a U.S. citizen decedent who passes away in 2011 or 2012 to use the decedent’s unused Federal estate tax exclusion amount in addition to the surviving spouse’s own basic Federal estate tax exclusion amount. This eliminates the need for spouses to re-title property and/or create trusts solely to take advantage of each spouse’s full basic Federal estate tax exclusion amount.

Under the current tax law, a person’s applicable Federal estate tax exclusion amount is the sum of (1) the basic Federal estate tax exclusion amount (currently, $5,000,000 minus any taxable lifetime gifts) and (2) in the case of a

Attorney-In-Fact’s Lawsuit Against Her Co-Attorney-In-Fact Is Allowed To Proceed

December 19, 2011

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I understand why someone would want co-executors, co-trustees, co-attorneys-in-fact, etc.  Maybe it’s because they’re afraid of having too much power in one person’s hand.  Maybe it’s because they don’t want to offend a friend, child, or relative.  Maybe it’s because it may just be easier to have a few people with that power in case the other is indisposed.  I get it.  But, going in, they should also know it’s a recipe for litigation.

Co-fiduciaries often have to work unanimously – either by statute or by the underlying instrument.  Lack of unanimity leads to lawsuits.  Moreover, when, for example, one attorney-in-fact lives in the same state as the principal, the co-attorney-in-fact residing in another state may be cut out of the process.  Whether perceived or actual shenanigans exist, litigation may result.

In Rosenkrantz v. Feit, a Florida Court of Appeals considered whether one attorney-in-fact could pursue a lawsuit

Another Reason Why It’s Important To Read The Entire Trust Instrument

December 16, 2011

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As corporate fiduciaries consolidate, merge, or otherwise combine with each other, trust departments are often tasked with administering trusts outside of their home state.  For example, a trust department in Florida may, for the first time, end up administering a New York trust.  Knowing which state’s trust law governs the administration of the trust is no small matter.

While corporate fiduciaries are usually well-acquainted with their home state’s trust code, they may not be as familiar with the trust codes and law that actually apply to that newly acquired trust relationship.  As a result, trustees may inadvertently end up administering the trust under the wrong standards by simply assuming that the home state’s trust code applies.

This is another reason why it’s so important to read every word in the trust instrument.  Even after reading the trust instrument, it’s then important to independently determine which state’s trust laws apply

Bryan Cave Recognized as #2 in Client Service

December 15, 2011

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Bryan Cave has been ranked number 2 out of approximately 650 law firms which serve Fortune 1000 companies, in BTI Consulting Group’s annual “Client Service A-Team.” BTI’s annual survey of law firm client service performance is designed to identify and recognize those firms which deliver best-in-class service. This marks the 4th consecutive year in which Bryan Cave has been included in the top 30 firms in the survey. “The results of this independent survey are a very important confirmation of our emphasis on client relationships and service,” said Don Lents, Chair of Bryan Cave LLP.   Read More.

Close Friend Became “Natural Object Of The Decedent’s Bounty”

December 14, 2011

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In a number of jurisdictions, there may be a presumption or inference of undue influence when a testator gives all or part of his or her estate to a person who is not the “natural object of the decedent’s bounty.”

In other words, a son or daughter is usually considered the natural object of a testator’s bounty so that the testator can give all of his or her estate to one child to the exclusion of the others without creating a presumption of undue influence on that basis alone.  Conversely, if a testator gives all of his or her estate to a friend or ‘stranger’ to the exclusion of his or her children, then that friend is usually not the natural object of the testator’s bounty and that may create a presumption of undue influence.

With that background, that’s why it is unusual that a trial court in

‘Tis the Season . . . for Engagements

Maybe it is all the time spent with friends and family, or the spirit of giving, or maybe it’s just all the mistletoe, but whatever the reason, the few months from Thanksgiving through Valentines Day always seem to be filled with engagements. As all of these happy couples begin to plan their weddings, and their lives together, many spend more time thinking about the band, picking out the perfect cake or looking for that perfect starter home than they do preparing for what may happen if things unravel down the road. Unfortunately, today the odds are not in favor of happily ever after.

Divorce is a difficult reality that many couples will eventually face. Entering into a prenuptial agreement before walking down the aisle can protect both

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