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Notary Did Not Count As A Second Attesting Witness

February 29, 2012

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Since our last review of subscribing witnesses to a will generated a lot of interest, here’s a recent case from Mississippi in which the Mississippi Court of Appeals had to consider whether the notary public who notarized the signature of an attesting witness was, herself, an attesting witness to the will.  Here’s the quick answer: she wasn’t.

Serial Victim Of Fraudulent Lottery Schemes Needed Conservator

February 27, 2012

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Guardianship and conservatorship disputes involve extremely sensitive issues and personal information about the ward.  That’s probably why in Georgia, at least, there isn’t an overwhelming amount of appellate authority in this area.  At the probate court level, much of the information is kept under seal.  Once it goes up on appeal, however, that which was once private gets a very public airing.

In a rare appeal of the appointment of a conservator, the Georgia Court of Appeals gave us guidance on the type of circumstances that justify appointment of a conservator.  In In re Cochran, the appellate court considered the case of Sara Cochran who, at 79 years of age, was a serial victim of fraudulent lottery schemes.

Donor Advised Funds Scrutinized by the Treasury Department

February 21, 2012

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From BryanCaveCharityLaw.com

At the request of Congress, the Department of Treasury recently issued a report on donor advised funds. Among other things, Congress had asked the Department of Treasury whether donations to a donor advised fund should be tax-deductible, whether such donations should be treated as donations to a public charity, and whether donor-advised funds should have a minimum distribution requirement. The Department of Treasury answered “yes” to the first two questions and “no” to the third, maintaining the status quo.

The full report can be read here: http://www.treasury.gov/resource-center/tax-policy/documents/supporting-organizations-and-donor-advised-funds-12-5-11.pdf.

IRS Extends Portability Election Deadline For Qualifying Estates

February 20, 2012

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The Internal Revenue Service announced that it was extending the portability election deadline for certain estates of married individuals. For qualifying estates, the deadline for making the election is now automatically extended until 15 months from the decedent’s date of death. Typically, the portability election must be made no later than nine months after a date of death unless the executor files a timely Form 4768 requesting an automatic six-month extension. Notice 2012-21 extends the election deadline only for the estates of married individuals who died after December 31, 2010, and before July 1, 2011, with a gross estate that does not exceed $5,000,000. Qualifying estates must make the portability election by filing the Form 706 and Form 4768 no later than 15 months after the decedent’s date of death. The Form 4768 must include a notation that notifies the Service that the Form 4768 is being filed pursuant to

IRS on your iPhone or Android device

February 17, 2012

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IRS on your iPhone or Android device

February 17, 2012

Authored by: Brent Howard

Last week the IRS announced the availability of IRS2Go 2.0, an expanded version of its smartphone app designed to provide taxpayers easier access to practical tools and information. It works on the iPhone and Android devices, and has a new YouTube feature, news feed and tax transcript service in addition to existing tools, such as checking on the status of a tax refund.

To learn more, click here (IR-2012-16, last updated Feb. 8, 2012)

Incapacity, Death, and Statutes of Limitation

February 17, 2012

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We’ve previously looked at statutes of limitation in the context of fiduciary litigation.   As a quick refresher, a lawsuit has to be commenced within so many years after the complained of act occurred or you can’t pursue the lawsuit.  There are exceptions to this rule which allow a statute of limitation to be extended, or “tolled.”

Tolling of statutes of limitations can come up with greater frequency in the fiduciary litigation context because certain events like incapacity can toll a statute of limitations.

In Estate of Formyduval, the North Carolina Court of Appeals examined, under North Carolina law, the interplay between incapacity, death, and the statute of limitations for an action to set aside deeds on the basis of fraud and/or undue influence

Let’s take a quick look at the background of this lawsuit over the estate of

Do You Really Want Your Trust Instrument To Prohibit Judicial Modification?

February 15, 2012

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From BryanCaveFiduciaryLitigation.com

This week, let’s take a look at another case from Florida.  You see a lot of trust instruments that ‘require’ a “corporate co-trustee.”  There are a lot of good reasons why the grantor may have wanted a corporate co-trustee to serve with a family member, friend, or other co-trustee.

Then again, as time goes by, a corporate co-trustee may no longer make a lot of sense.  It could be that the trust has been substantially administered or that the corpus is so small that a corporate trustee’s fee schedule just doesn’t work.  That’s when the beneficiaries and trustees usually get together and go to court to have the trust modified to permit the corporate trustee’s resignation and have the trust modified either to allow a single trustee or to allow an individual to serve as co-trustee.  These things are often done by consent

Do You Really Want Your Trust Instrument To Prohibit Judicial Modification?

February 15, 2012

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This week, let’s take a look at another case from Florida.  You see a lot of trust instruments that ‘require’ a “corporate co-trustee.”  There are a lot of good reasons why the grantor may have wanted a corporate co-trustee to serve with a family member, friend, or other co-trustee.

Then again, as time goes by, a corporate co-trustee may no longer make a lot of sense.  It could be that the trust has been substantially administered or that the corpus is so small that a corporate trustee’s fee schedule just doesn’t work.  That’s when the beneficiaries and trustees usually get together and go to court to have the trust modified to permit the corporate trustee’s resignation and have the trust modified either to allow a single trustee or to allow an individual to serve as co-trustee.  These things are often done by consent order, which the

I am the parent of a child with special needs…

Question: As the parent of a child with special needs, I know I need to have a Will, and probably a special needs trust, but do I really need to have a durable power of attorney for financial affairs?

Yes. Your Will is only effective if you die, whereas a power of attorney is effective while you are alive. If you became incapacitated due to an accident, disease or other cause, no one can handle your financial affairs. At that point, someone would have to hire an attorney and go to court to seek guardianship of your assets, so they have the authority to act for you and continue to pay your and your family’s bills.

However, appointing an agent in a financial power of attorney avoids this costly court guardianship proceeding. Your agent can continue to manage your assets and use your funds to meet the financial needs

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