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A Gift for the New Year: Transfer on Death Instruments

Starting on January 1, 2012, Illinois property owners have a new option when it comes to transferring their residential real estate on death. Now that the Illinois Residential Real Property Transfer of Death Instrument Act (the “Act”) has been signed into law, Illinois joins several other states, including Missouri and Colorado, that allow some form of transfer on death instrument for real estate.

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

Common Law Marriages, Dead or Alive? Both.

October 25, 2011

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A client recently asked me about the status of Georgia common law marriage, and in answering him, I thought it might be a good time for a reminder for all of us (including those in other states) that even if a state no longer recognizes common law marriage, usually such marriages remain valid if formed prior to the date of a statutory enactment prohibiting them. In addition, most states also recognize common law marriages formed in other states.

For example, the State of Georgia recognizes common law marriages formed prior to January 1, 1997 as well as valid common law marriages formed in other states.   Under Georgia law, a valid common law marriage may be formed between a man and a woman if they have (1) the capacity to make a marriage contract, (2) actually entered into a nuptial contract (usually proven by evidence of the couple holding themselves

How Reproductive Technology Can Affect Your Estate Plan in Unforeseen Ways

On August 29, 2011, the 8th U.S. Circuit Court of Appeals in St. Louis held that an eight-year-old Iowa girl born two years after her father died is not eligible to receive his Social Security benefits.   If your grandmother, like mine, would have thought it was fishy that a child was born less than nine months after a wedding, imagine her reaction to learning that a child was born two years after the father’s death!

But with the use of assisted reproductive technology, like in vitro fertilization and artificial insemination, it IS now possible for a baby to be born more than 9 months after a parent dies. The use of assisted reproductive technology means that, if a parent preserves his or her genetic material (his sperm, her eggs, or their

2011 Amendments to Delaware Trust Laws

August 10, 2011

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(This post originally appeared on Bryan Cave’s Fiduciary Litigation Team’s Blog.  Please click here to see the original post.)

Effective August 1, 2011, a number of new changes went into effect changing Delaware trust law. While the amendments make a lot of changes to the Delaware trust laws, below are some of the changes that are likely to have the biggest impact on litigation concerning Delaware trusts.

Wrongdoing:  The amendments have added a definition of “wrongdoing” to clarify its meaning within the definition of “wilful misconduct.”  For purposes of Delaware trust law, “wilful misconduct,” means “intentional wrongdoing, not mere negligence, gross negligence or recklessness.”  Apparently, there was some confusion over the meaning of “wrongdoing,” and, therefore, “wrongdoing” is now defined as “malicious conduct or conduct designed to defraud or seek an unconscionable advantage.”  To the extent that previously there was a benign interpretation of

New Georgia Trust Code Turns One; Reflections on the First Year

On July 1, 2010, the provisions of a completely revised Georgia trust code became effective. This month we celebrate its first anniversary, so it seemed to be a good time to reflect on what were the top “attention-getters” of the new code. In thinking about this “top three” list, we’re reminded of the last time we trained a new puppy. The theme was: reward the good behavior, ignore the bad. Fortunately, the new code will help you take care of your dog and rewards good trustee behavior, but there could be serious consequences for a trustee not complying with some of the new provisions.

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