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Kim Civins Elected as a Fellow of ACTEC

October 27, 2016

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The Private Client group of Bryan Cave is proud to announce that Kimberly E. Civins has been elected as a fellow of the American College of Trust and Estate Counsel (ACTEC).

ACTEC is a nonprofit association of lawyers established in 1949 whose pre-eminent members are elected to the College by demonstrating the highest level of integrity, commitment to the profession, competence and experience as trust and estate counselors. Membership in ACTEC is by election of the regents of the College. Individual lawyers meeting the criteria for membership are nominated for membership by fellows of the College, and subjected to careful review by state and national membership selection committees, prior to consideration by the regents of the College.

All ACTEC members have made substantial contributions to the field of trusts and estates law through writing, teaching and bar leadership

When The Power To Amend Doesn’t Actually Mean You Can Amend

October 20, 2016

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Circumstances, laws, and taxes all change.  And, when they do, many settlors don’t want their beneficiaries to have to go into court to get permission to roll with the changes.  That’s why you often find a trust provision that permits non-judicial amendments to the trust.  The breadth of these powers to amend differ from a narrow power to amend to a broad power to amend, like the one before the Maryland Court of Special Appeals in Grueff v. Vito.  There, the power to amend a family trust provided:

This Agreement may be revoked, altered or amended from time to time by an instrument in writing, signed by the holders of not less than seventy-five (75%) interest herein and delivered to the Trustee.

The beneficiaries used that amendment power a number of times over the years.  But, eventually they took it too far.  After

THE CHOICE IS NOW YOURS

THE CHOICE IS NOW YOURS

October 6, 2016

Authored by: Kathy Sherby and Charles Lin

Rev. Proc. 2016-49

The recent issuance of Rev. Proc. 2016-49, which modifies and supersedes Rev. Proc. 2001-38, now puts the taxpayer in the driver’s seat. Recall that in Rev. Proc. 2001-38, the Service was providing relief for the surviving spouse when an unnecessary QTIP election was made, by treating such a QTIP election as though it had not been made. Practitioners began to question whether Rev. Proc. 2001-38 would render a QTIP election a nullity when made in order to qualify for a state marital deduction where such an election was not needed to reduce the Federal estate tax liability to zero. Then when portability came into the picture, the enhanced concern about basis adjustment at death drove practitioners to want to make a QTIP election even though not needed to reduce the estate tax liability, to permit the surviving spouse to make larger gifts that would not

The Mental Capacity Needed To Change Domicile

October 5, 2016

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In litigation, domicile matters because it can control where a lawsuit must be filed and fought.  For most of us, where we are domiciled should be straightforward.  It’s the place where we actually live and intend to remain.  Domicile questions can get a little trickier when someone moves around.  Domicile questions can start to get really tricky when the mental capacity of someone is impaired and that person moves around.  If domicile requires someone to form the intent to remain in a certain place, how much mental capacity is needed to form that intent?

In Estate of Milton Theophilus Pond, II, the Georgia Court of Appeals considered the domicile of a person whose capacity was sufficiently impaired by autism to warrant a guardianship.  The ward lived with his mother in North Carolina during the school year and spent his summers with

Recent Tax Court Case Rules on Treatment of Madoff Account

Recent Tax Court Case Rules on Treatment of Madoff Account

October 3, 2016

Authored by: Stacie J. Rottenstreich and Karin Barkhorn

In a recent Tax Court decision, Harry H. Falk, and Steven P. Heller, Co-Executors, v. Commissioner of the Internal Revenue, the United States Tax Court ruled that in the case of the Madoff Ponzi scheme, an estate which paid estate tax on Madoff assets which subsequently have become worthless can claim a theft deduction.

James Heller, a New York state decedent, died in January 2008 owning a 99% interest in James Heller Family, LLC (the “LLC”).  The only asset held by the LLC was an account with Bernard L. Madoff Investment Securities, LLC.  In November of 2008, the Executors of Mr. Heller’s estate withdrew some money from the LLC’s Madoff account in order to pay estate taxes and other administrative expenses.  Shortly thereafter, the news of the Madoff Ponzi scheme became public. Suddenly, the LLC’s interest and the estate’s interest in the LLC became worthless.

In April 2009, the Executors

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