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Update: Rev. Proc 2014-18s Effect on Same-Sex Married Couples and Portability Elections

Under the portability rules a surviving spouse can elect to have the deceased spouse’s unused estate tax exemption (currently $5.34 Million) added to the surviving spouse’s estate tax exemption amount. But to do this, a federal estate tax return has to be filed within 9 months of the death of the first spouse, even if there is no taxable estate for estate tax purposes. The federal estate tax return is the only way to take advantage of the portability election.  The nine month time limit has proved to be an issue in regards to same-sex spouses, whose marriages were not recognized by the IRS until the Windsor decision on June 26, 2013.  Click here, here, and here to read about the Windsor decision. We believed the Windsor decision may have opened the door to the otherwise “late” portability elections for same-sex spouses, but were not sure how

Petition To Probate Copy Of Testator’s Will Denied

January 30, 2014

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Just a few months ago, we saw the Georgia Supreme Court decide that a copy of a will was good enough to admit to probate.  At that time, we said

Under Georgia law, if the original of a will cannot be found for probate, there is a presumption that the testator intended to revoke the will.  But this presumption can be overcome if a copy is established by a preponderance of the evidence to be a true copy of the original and if it is established by a preponderance of the evidence that the testator did not intend to revoke the will.

Now, in Britt v. Sands, we see that same Supreme Court decide that a copy was not good enough.  What was the difference?

IRS Issues Revenue Procedure Regarding Portability Election

Yesterday, the IRS released Rev. Proc. 2014-18, which provides a simplified method for certain taxpayers to obtain an extension of time to make a “portability” election, allowing a surviving spouse to apply a deceased spouse’s unused exclusion amount (deceased spousal unused exclusion amount, or DSUE amount)  to the surviving spouse’s subsequent transfers during life or at death.  For more discussions on portability, see our prior posts herehere, here, here and here (can you tell portability has been a hot topic in recent years?)

Under section 2010 (c)(5)(A) of the Code, a portability election must be made on a timely filed Form 706 (Estate Tax Return).  If an executor would not otherwise be required to file an Estate Tax Return, the executor may file for an extension of time under section 301.9100-3 to make the portability election.  In general, such an extension will be granted if the taxpayer establishes that the taxpayer

Breach Of Fiduciary Duty Under Power Of Attorney

January 28, 2014

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One recent fiduciary litigation trend is the increase in litigation involving powers of attorney.  While some of these cases involve the abuse of a validity executed power of attorney, others involve issues in the procurement of the power of attorney, such as procurement through fraud, undue influence, or lack of capacity.  In Estate of Mary E. Hiller, the Supreme Judicial Court of Maine recently considered a probate court‘s decision involving procurement of a power of attorney and acts purportedly taken pursuant to that power of attorney.

Private Foundations: A Trend Towards Program Related Investments

A program related investment (PRI) is a powerful tool for a private foundation to positively influence social enterprise while advancing its philanthropy and satisfying its 5% annual minimum distribution requirement. Traditionally, private foundations have used grant-making activities as the primary means to satisfy their 5% annual minimum payout requirement and to accomplish their tax exempt purposes. However, modern trends reveal a new focus of private foundations on PRIs to achieve the same results.

What is a PRI?

A PRI is an investment, rather than a grant, whose primary purpose is to achieve one or more of the private foundation’s tax exempt purposes and no significant purposes of which is the production of income or the appreciation of property. However, the fact that an investment produces significant income or capital appreciation is not conclusive evidence that income or appreciation was a significant purpose of the investment, and, therefore, does not preclude

Estate Planning and Your Pets – Real Life “Aristocats”

Recently, a man who died in Tennessee left his two cats a life interest in his estate. Upon the death of the surviving cat, the remaining estate will pass to the man’s family. Comments on the internet have focused on the cats’ safety, which reminds me of the old Disney move, The Aristocats, where a wealthy old lady leaves her estate to her cats for their lives and the remainder to her butler. After the will is drawn up, the butler tries to dispose of the cats, so he will inherit the estate immediately upon the lady’s death. When her cats expose the butler’s plan, with the aid of several other animals, the lady writes him out of her will and adds the animals that helped save her cats into her will.  You can read more about the Tennessee Aristocats here.

Leaving one’s entire estate to the pets is

Bankruptcy Ruling Highlights Potential Problems of Using Deeds As Estate Planning Tools

From BryanCaveFiduciaryLitigation.com

Northern District of Oklahoma Chief Bankruptcy Judge Terrence L. Michael’s introduction to the opinion in In re Harrison (2013 WL 6859303) serves as a good introduction to this post:

Whether for carpentry or estate planning, it is usually a good idea to use the right tool for the job. Unfortunately, when it comes to estate planning and asset transfer, people are often ill-informed about the tools available to them and the perils of choosing the wrong one. If a parent wants to gift an asset to a child only upon the parent’s death or incapacity, state law provides tools to accomplish that end. Unfortunately, use of the wrong tool could unwittingly result in a present transfer and the unintended loss of the asset.

Bankruptcy Ruling Highlights Potential Problems Of Using Deeds As Estate Planning Tools

January 22, 2014

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Northern District of Oklahoma Chief Bankruptcy Judge Terrence L. Michael’s introduction to the opinion in In re Harrison (2013 WL 6859303) serves as a good introduction to this post:

Whether for carpentry or estate planning, it is usually a good idea to use the right tool for the job.  Unfortunately, when it comes to estate planning and asset transfer, people are often ill-informed about the tools available to them and the perils of choosing the wrong one.  If a parent wants to gift an asset to a child only upon the parent’s death or incapacity, state law provides tools to accomplish that end.  Unfortunately, use of the wrong tool could unwittingly result in a present transfer and the unintended loss of the asset.

This case highlights issues that can arise when people use deeds conveying real property to others rather than using other estate planning devices.  Here, Angela

Court Could Not Impose Constructive Trust On Assets Transferred From Trust To Limited Partnership

January 17, 2014

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Whether a particular court has jurisdiction to hear a trust dispute can become increasingly more complicated as trustees, beneficiaries, and assets move to different states.  So, when a lawsuit is filed, a threshold question should be whether the lawsuit was filed in a court with jurisdiction over the parties and the property.

The Nevada Supreme Court’s decision in In re Aboud Inter Vivos Trust highlighted some of these jurisdictional issues when the Court considered whether a district court could impose a constructive trust over assets transferred from a trust to a limited partnership and then from the limited partnership to a corporation.

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