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Alaska Supreme Court Refuses To Reform Or Terminate Irrevocable Trust

May 28, 2014

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An irrevocable trust, once set up, can be a difficult thing to terminate or modify.  In Purcella v. Olive Kathryn Purcella Trust, we see how difficult it is to modify or terminate a trust even in a friendly jurisdiction like Alaska.  Therefore, those considering an irrevocable trust need to consider that irrevocable means what it says, and those advising persons in their wealth planning should make sure that they explain that irrevocable means what it says.

Olive Kathryn Purcella sought to terminate her trust or to modify her trust, claiming that she did not intend to execute an irrevocable trust or that the irrevocable trust was the product of undue influence.  Ms. Purcella’s lawyer had suggested that she create a trust because she was going to receive some money from a dispute regarding a family company and because one of Ms. Purcella’s

Did You Know? Report Sale Transactions on Income Tax Returns of Trusts and Estates on New Form 8949

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The Internal Revenue Service is now asking for more information from Estates and Trusts in reporting capital gains. In completing Schedule D to the Form 1041, a Form 8949, Sales and Other Dispositions of Capital Assets, will now need to be completed by fiduciaries with the totals from Form 8949 then included on Schedule D. This is the same Form that has been used in prior years on individuals’ Form 1040.

Preparing A Will For A Blind Testator

May 22, 2014

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People with disabilities need wills, too.  Depending on the disability, however, an estate planner may need to do a little extra work to ensure that the testator’s intent is upheld if the will is challenged.  In deciding other issues in Ammons v. Clouds, the Georgia Supreme Court gave estate planners a few suggestions on how to draft a will for a blind client.

In Georgia, there is some authority that, if a testator is blind, more than the ordinary degree of “positive proof that he actually knew and assented [to the contents of the will] is required to repel any suspicion which circumstances may have cast upon the good faith of the transaction . . . .”  Estate planners, therefore, should take extra care to show that the will was prepared according to the testator’s wishes.  The will should be read to the

A Cautionary Tale: Florida Supreme Court Rules on “Do It Yourself” Will Form

187458483From BryanCaveFiduciaryLitigation.com

Considering creating a do-it-yourself Will to save money?  A recent Florida Supreme Court Case, Aldrich v. Basile, should make you reconsider. 

When It Comes to Love and Money, Money Often Prevails

462235785On occasion, a case arises that causes wonder and amazement that children would complain that mom is receiving funds from a trust that either should be distributed to them or should be preserved for them. The Missouri case, O’Riley v. U.S. Bank, N.A., is just such a case.

The Trust was created on the death of Donald O’Riley in 1982 for the benefit of his wife, Arlene, and their two sons, Terrance and Gerald. In 2010, the sons filed this action against the Trustee for breach of its duty of impartiality in refusing to make distributions to them and favoring their mother, instead. The trial court entered judgment for the Trustee that it had not breached its duty of impartiality and the appellate court affirmed.

A Cautionary Tale: Florida Supreme Court Rules On “Do It Yourself” Will Form

May 20, 2014

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Considering creating a do-it-yourself Will to save money?  A recent Florida Supreme Court Case, Aldrich v. Basile, should make you reconsider.

Here are the facts of the case:

In April 2004, Ms. Ann Aldrich (“Ann”) wrote her will on an “E-Z Legal Form.”  In Article III, entitled “Bequests,” just after the form’s pre-printed language directing payment of debts, Ann hand wrote instructions directing that all of her “possessions listed” (Ann’s house and contents, a rollover IRA, a life insurance policy, an automobile and certain bank accounts) go to her sister, Mary Jane Eaton.  Ann also wrote on the form document that if her sister predeceased her, all such property should go to Ann’s brother, James Michael Aldrich.  Containing no other distributive provisions, the Will was duly executed.

Three years later, Ann’s sister died leaving all of her assets to Ann.  As a result, Ann inherited cash

HERE COMES THE JUDGE: SUPREME COURT TO RULE ON CREDITOR PROTECTION IN BANKRUPTCY FOR INHERITED IRAs

US Supreme Court

In 2012, the Fifth Circuit ruled in In re Chilton that inherited IRAs constituted retirement funds within the “plain meaning” of §522 of the Bankruptcy Code and were thus exempt from the bankruptcy estate, under § 522(d)(12) (the federal exemptions). See our prior discussion of this case here.

Were Assets Of Sole Proprietorship Personal Property Of Decedent Or Separate Business Interests?

May 16, 2014

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171581418Originally posted on bryancavefiduciarylitigation.com

When it comes to estate planning and disposition of assets upon death, a business owner should pay careful mind to the type of business he or she owns and update his or her estate planning documents if the form of the business changes.  InEngland v. Simmons, the Georgia Supreme Court had to determine a testator’s intent when he left his “personal assets” to his brother and sister and left his “business interests” in his sole proprietorship to his brother, sister, and two longtime employees.

Traditional Fine Art was the sole proprietorship of Robert Carl Haege.  Therefore, it had no legal existence separate and apart from Haege himself.  For these reasons, a trial court determined that all property associated with Traditional

Were Assets Of Sole Proprietorship Personal Property Of Decedent Or Separate Business Interests?

May 15, 2014

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When it comes to estate planning and disposition of assets upon death, a business owner should pay careful mind to the type of business he or she owns and update his or her estate planning documents if the form of the business changes.  In England v. Simmons, the Georgia Supreme Court had to determine a testator’s intent when he left his “personal assets” to his brother and sister and left his “business interests” in his sole proprietorship to his brother, sister, and two longtime employees.

Traditional Fine Art was the sole proprietorship of Robert Carl Haege.  Therefore, it had no legal existence separate and apart from Haege himself.  For these reasons, a trial court determined that all property associated with Traditional Fine Art should go to Haege’s brother and sister as “personal assets” – all property associated with the business was merely

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