Massachusetts Uniform Trust Code, Revisions to Massachusetts Uniform Probate Code, and New Probate and Family Court Fee Schedule Pass House and Senate – Await Governor’s Signature

On Thursday, June 28, 2012, both the House and the Senate passed House Bill No. 4223, available here. H.4223, which amends S.2128, currently awaits Governor Patrick’s signature, and will take effect immediately. H.4223 will enact the Massachusetts Uniform Trust Code (the “MUTC”). The MUTC (new Chapter 203E of the Massachusetts General Laws) will generally replace, and greatly expand upon, the trust law provisions (Article VII) of the Massachusetts Uniform Probate Code (the “MUPC”), which became effective on March 31, 2012. H.4223 will also make various (primarily technical) changes to the MUPC, and will introduce a revised Probate and Family Court Fee Schedule. We will provide more detail as soon as H.4223 has become effective.

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The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org/ or call 617-742-0625.

Maybe You CAN Go Home Again: Reverse QPRTs

Author:
Christine Carlstrom, Esq., Law Offices of Christine Carlstrom

When a client has misgivings about paying rent after his QPRT term expires, or is unable to afford it, there are limited options. One of them is a relatively new, IRS-sanctioned technique known as a “Reverse QPRT,” which can avoid the potential income, gift, and estate tax consequences of alternatives such as using a promissory note or simply foregoing rent payments.
In a Reverse QPRT, the Settlor creates an irrevocable trust and transfers to it his interest in a residence, just as in a standard QPRT. Rather than retaining a right to live in the residence for X years and making a gift of the remainder, however, in a Reverse QPRT the Settlor makes a gift of the term interest and keeps the remainder interest.

Imagine a client, Don, who at age 65 created a QPRT. Don is a widower with one child, Ben. Through his QPRT, Don retained the right to live in his home rent free for 10 years, after which it would be distributed outright to Ben. At the end of the 10 years, the Trustee conveyed the residence to Ben, and Don began paying fair market rent. It is now some months later, and Don, having reassessed his financial situation, determines it would be best to postpone making rent payments for some time.

One way to accomplish this would be for Ben to create a Reverse QPRT. Specifically, Ben, now the owner of the residence, can create an irrevocable trust, transfer the home to it, and direct the trustee to allow Don to live in the home rent free for 5 years. At the end of that time, the trust could be liquidated and the property conveyed back to Ben.

Normally, such a transfer in trust to a family member with a retained interest would be subject to the Code's special valuation rules, I.R.C. §§ 2702(a)(1) and (2). Under these rules, Ben's remainder interest, which he would like to deduct for gift tax purposes from the value of his gift of the residence to the trust, would be deemed to have a value of zero.

These special valuation rules do not apply to QPRTs, of course, which are exempt under I.R.C. § 2702(a)(3)(A)(ii) and regulations at § 25.2702-5(c). Since 2008, the IRS has recognized in over a dozen Private Letter Rulings that Reverse QPRTs are likewise exempt from the special valuation rules. [1]

Accordingly, the value of Ben's remainder interest can be determined using the I.R.C. § 7520 rate, which for June 2012 is 1.2%. This historically low rate depresses valuations for income interests and increases valuations for remainder interests, compared with higher rates. So from a gift tax standpoint, it discourages the use of QPRTs, but produces quite favorable results for Reverse QPRTs. Unless Ben has made substantial lifetime gifts, he can create a Reverse QPRT and give his father a term interest in the residence, while paying no gift tax and using a relatively small fraction of his $5.12 million gift tax exemption.

The Private Letter Rulings

1. Outright Distribution at End of Original QPRT Term

In the first Private Letter Rulings in which the IRS considered Reverse QPRTs, issued in 2008, the facts were the same as those in our Don and Ben example. [2]

In these PLRS, the Settlor of the first QPRT had survived the term, the residence had been distributed outright to his children, and the Settlor had begun paying rent. The children proposed to create a new irrevocable trust, the terms of which granted their father a right to live in the residence for one year, after which the trust would terminate and the residence would be distributed back to them. The children were to be the Trustees of the Reverse QPRT. They also retained reversionary rights; if any child died before the term ended, his interest in the residence would be distributed to his estate. [3]

The taxpayers requested a ruling that this proposed trust would qualify as a personal residence trust under the QPRT regulations. The IRS noted that, pursuant to Rev. Proc. 2007-3, it ordinarily will not issue rulings regarding whether a particular trust qualifies as a QPRT. The IRS found it appropriate to issue rulings in these cases, however, “because of the unusual facts presented.” It ruled that, assuming the residence was a personal residence, as defined in the regulations, the trust did qualify as a QPRT, and the children's transfer to the trust would be exempt from the special valuation rules.

Prior to these rulings, some practitioners may have assumed that the QPRT Donor must hold the term interest in the trust. The regulations, however, require that the property held by a QPRT must be limited (with a few exceptions) to “one residence to be used... as a personal residence of the term holder.” [4] A personal residence may be either the term holder's principal residence or other residence. [5] Thus, a Reverse QPRT meets these requirements; the regulations do not require that “term holder” be synonymous with “Donor.”

2. Continuing Trust for Beneficiaries After Expiration of Original QPRT Term

In the earliest PLRs described above, the original QPRT provided for an outright distribution to the Donor's children when the Donor's term expired. Subsequent PLRs considered situations in which the original QPRTs provided that the residence would remain in trust for the children's benefit, postponing outright distribution typically until the death of the original Donor or until the second death of the Donor and his spouse.

In those rulings, the Donor (individually and as Trustee) and children jointly executed trust modifications to allow the children to create a Reverse QPRT. In some cases, this modification was executed before the expiration of the original QPRT term; in others, it was executed after the term expired. The modifications generally provided that at the end of the term, the children could direct the trustee to liquidate the trust or to make a gift of a term interest to whomever they chose. In all but the most recent PLRs, it was proposed that the children would convey their interest in the residence, by warranty deed, to a new Reverse QPRT, which provided a term interest to their parent.

Beginning with the PLRs issued in 2010, the trust modifications proposed by the taxpayers took a different tack. The modifications provided that: (i) the children were granted a power to appoint the trust property to themselves upon expiration of their parent’s term interest, and (ii) could, instead of appointing the property, direct the trustee to amend and restate the original QPRT to grant their parent the right to occupy the residence for a stated term. Under this fact pattern, the children's release of their general power of appointment constituted the gift to their parent, and there was no need to re-title the property in another trust.

In all of the above rulings, the IRS agreed that I.R.C. § 2702 was inapplicable to the proposed transfer to a Reverse QPRT, or to the proposed trust modifications, or amendments and restatements, described in each ruling.

3. The Caveat: Potential Inclusion Under I.R.C. § 2036

In every ruling in which the IRS blessed a Reverse QPRT, it also explicitly stated that, “no opinion is expressed or implied concerning whether...” the proposed technique would result in the residence being included in the parent's gross estate under I.R.C. § 2036.

Although the IRS has not yet ruled on the issue of whether, and under what circumstances, a Reverse QPRT will cause the residence to be included in the gross estate of the original Donor, it also did not conclude in any of the PLRs that such inclusion is required under I.R.C. § 2036. This implies that any such inclusion will depend on the facts of each situation, with existing cases and rulings serving as guideposts.

Certainly, in most cases if the beneficiary of a Reverse QPRT survives beyond the term, I.R.C. § 2036 inclusion should become a non-issue, just as with a “standard” QPRT.

Beyond that, that the risk of estate inclusion can be minimized by steering clear of circumstances suggestive that the original QPRT Donor never intended to relinquish possession and enjoyment of the residence during his lifetime, or that the Donor and beneficiaries agreed at the outset that the QPRT would be followed by a Reverse QPRT. In other words, the facts should support a conclusion that there was a bona fide transfer of the remainder interest to the children after the QPRT term ended, and that their gift of a term interest to their parent was not pre-arranged. In order to accomplish this, the parties could:

· Allow the QPRT term to expire prior to executing any trust modification that relates to granting another term interest to the original QPRT Donor

· Ensure that the original Donor pays fair market rent for some period after the QPRT term ends
· If the original QPRT provided for distribution outright to beneficiaries after the term expires, ensure that a deed conveying the residence to the beneficiaries is executed and recorded

· Document any changed financial circumstances or other hardship that would provide a basis for a Reverse QTIP

· Avoid having Settlor of the original QPRT serve as Trustee of the Reverse QPRT

· Give the Settlor of the Reverse QPRT powers or interests that could extinguish the parent's term interest. For example, have the Settlor retain a reversion in the event that he dies during the parent's term interest

If clients are interested in a Reverse QPRT, keeping the residence out of the parent's estate most likely remains a planning goal. [6] That goal will need to be balanced against the ability to pay rent and the risk of possible inclusion under § 2036. Once the original Donor has survived the QPRT term, and achieved the intended “estate freeze,” the prospect of potentially undoing that may cause some to choose to pay rent after all. But if paying rent is not a viable option, a Reverse QPRT may be able to effectively extend the original Donor's term interest, while still sheltering the residence from inclusion in his gross estate. Even if the transaction cannot be structured to eliminate potential arguments for § 2036 inclusion, the consequences of such inclusion should be no more onerous than if the Donor had died during the first QPRT term. [7]

Looking Forward: Drafting Considerations

Practitioners may also want to keep Reverse QPRT techniques in mind when drafting QPRTs, in order to facilitate their potential use down the road with minimal § 2036 exposure. For example, perhaps in some situations the balance will tip in favor of outright distribution after the QPRT term ends, rather than leaving the residence in a continuing trust that would require amendments with the Donor's involvement. The Private Letter Rulings also raise the question of whether, and to what extent, trust provisions similar to the modifications described in the rulings might be built into a QPRT at the outset, to provide flexibility while preserving the QPRT's gift and estate tax advantages.

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[1] See PLR 200814011 (May 4, 2008); PLR 200816025 (May 18, 2008); PLR 200848003 (Nov. 28, 2008); PLR 200848007 (Nov. 28, 2008); PLR 200848008 (Nov. 28, 2008); PLR 200901019 (Jan. 2, 2009); PLR 200904022 (Jan. 23, 2009); PLR 200904023 (Jan. 23, 2009); PLR 200920033 (May 15, 2009); PLR 201006012 (Feb. 12, 2010); PLR 201014044 (April 9, 2010); PLR 2010119006 (May 14, 2010); PLR 2010119007 (May 14, 2010); PLR 201019012 (May 14, 2010); PLR 201131006 (August 5, 2011).

[2] Except that two siblings were the reminder beneficiaries of the first QPRT and together created the new Reverse QPRT. See PLR 200814011, PLR 200816025.

[3] This reversionary interest was described in the fact patterns of only the first two rulings: PLR 200814011 and PLR 200816025.

[4] 26 C.F.R. 25.2702-5(c)(5) (emphasis added).

[5] See 26 C.F.R. 25.2702-5(c)(2)(i) (emphasis added).

[6] Otherwise, the QPRT Donor can simply continue to live in the residence rent free after the QPRT term ends; there is no need for a Reverse QPRT.

[7] All a Settlor loses if he doesn't survive the QPRT term is the benefit of the intended "estate freeze," he will not have wasted any gift tax payment or unified credit. See Natalie Choate, The QPRT Manual §§ 1.3.09, 4.1.04 (2004); I.R.C. § 2001(b). It is not clear, however, whether the children might be worse off if the residence held in a Reverse QPRT is included in their parent's gross estate by reason of I.R.C. § 2036. To the extent the children pay gift tax or use up their exemption, this would not be accounted for in the parent's estate tax calculations.

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The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org/ or call 617-742-0625.

When Can We Sell the Real Estate? The MUPC in a Nutshell

Author:
Amanda Zuretti, Esq., CATIC

Although Massachusetts estate planners and family law practitioners are familiar with M.G.L. c. 190B, the Massachusetts Uniform Probate Code (“MUPC”), as a result of the statute’s guardianship provisions having taken effect on July 1, 2009, real estate conveyancers are just beginning to appreciate the MUPC’s impact on real estate practice resulting from the reforms that took effect on March 31, 2012.

Prior to March 31, 2012, the language (and practice norms) regarding sale of real estate from a decedent’s estate seemed clearer: real estate that was a probate asset could only be conveyed once the “estate ha[d] been officially administered and the creditors’ claims [were] either satisfied or barred.” [1] Real estate conveyancers knew that the fiduciary of an intestate decedent was an “administrator” who had no authority to convey real estate without a license to sell pursuant to M.G.L. c. 202, and that the fiduciary of a testate decedent was an “executor” who had authority to sell real estate (upon allowance of the Will) provided that power of sale was contained within a Will.

The MUPC’s introduction of informal and formal probate proceedings [2] initially caused disagreement among real estate practitioners as to what would be needed to “officially administer” an estate, and confusion as to whether probate petitions filed prior to March 31, 2012 would have to be refiled in order to comply with the MUPC. Because a formal proceeding (M.G.L. c. 190B, §3-401) may be commenced (and may supersede) an informal proceeding (M.G.L. c. 190B, §3-302) at any time up to three years from the filing of a petition for informal probate, real estate practitioners and title insurers disagreed as to whether and when real estate that is a probate asset could be conveyed, and when a license to sell real estate might be required.

In addition, the replacement of “administrator” and “executor” with the neutral term “personal representative” (M.G.L. c. 190B, §1-201) caused confusion because “personal representative” applies to the fiduciary of both testate and intestate decedents’ estates, making it impossible to know by reference to the term alone if a decedent died testate or intestate, and/or if the probate was commenced in an informal or formal proceeding.

Fortunately, however, the Probate and Family Court provided a comprehensive procedural guide to orient practitioners to the filing requirements under the MUPC. Also available are transitional Standing Orders and forms applicable to matters begun prior to the effective date of the MUPC which remained pending as of March 31, 2012.

Real estate practices for conveyance of real estate from a decedent’s estate under the MUPC have emerged from the Real Estate Bar Association in the form of new REBA Title Standard No. 78, in conjunction with Title Standards No. 10, 14, 36, 41, 43, 50 and 71 as revised May 7, 2012.

The new and revised Title Standards clarify that a personal representative has authority to convey real estate that is a probate asset under the following conditions:

1. Only with license to sell real estate pursuant to M.G.L. c. 202 if decedent died intestate (regardless of whether the proceeding is formal or informal).

2. Only with license to sell real estate pursuant to M.G.L. c. 202 if decedent died testate decedent (regardless of whether the proceeding is formal or informal) if there is no power of sale in the Will.

3. Without license if decedent died testate and petition for probate is made in a formal proceeding and there is power of sale in the Will.

A trap for the unwary is that the revision of the rules of intestate succession (M.G.L. c. 190B, §3-302) now ties decent and distribution of interest in a decedent’s estate to the date of the decedent’s death. In other words, the estate of an intestate decedent whose date of death is prior to March 31, 2012 is controlled by the long-established rules of descent and distribution set forth in M.G.L. c. 190, §3, where the calculation of intestate shares flows per stirpes. By contrast, the estate of an intestate decedent who passed away on or after March 31, 2012 is controlled by the rules of descent and distribution set forth in M.G.L. c. 190B, §201 et. seq., which introduces the more modern calculation of intestate shares per capita at each generation. For a concise discussion of the new regime for intestate succession, Jennifer A. Maggiocomo’s “Introduction to the Massachusetts Uniform Probate Code” is essential reading.

With regard to the MUPC’s new recording requirements for deeds of distribution (M.G.L. c. 190B, §3-908), letters of conservator (M.G.L. c. 190B, §5-420), and disclaimers of property interest (M.G.L. c. 190B, §2-801) probate attorneys will play an important role in guiding real estate attorneys as the need arises until new real estate conveyancing practice norms take hold.

Although real estate attorneys are quickly integrating many of the new provisions of the MUPC, M.G.L. c. 190B, §3-108, which creates a presumption of intestacy if a decedent’s Will is not submitted to probate within three years of the date of death continues to generate discussion. Prior to the MUPC, a Will could be submitted to probate within 50 years of the decedent’s death, and thereafter for cause, and clearing title to real estate that had been held in a family for several generations sometimes required filing Wills for commencing title curative probate actions years or even decades after a decedent’s passing. The concern among real estate attorneys is that the MUPC in its current form introduces uncertainty into heretofor accepted conveyancing practice.

It is hoped that technical corrections [3] to M.G.L. c. 190B filed January 24, 2011 by Sen. Cynthia S. Creem as S. 00704 will soon be enacted to clarify certain provisions of the current MUPC. Senator Creem’s Bill revises the existing M.G.L. c. 190B, §3-108 (4) and introduces an additional subsection (5), which reads as follows:

(4) an informal appointment or a formal testacy or appointment proceeding may be commenced thereafter if no proceedings concerning the succession or estate administration has occurred within the 3 year period after the decedent’s death, but the personal representative has no right to possess estate assets as provided in Section 3-709 beyond that necessary to confirm title thereto in the successors to the estate and claims other than expenses of administration may not be presented against the estate; and (5) a formal testacy proceeding may be commenced at any time after 3 years from the decedent’s death for the purpose of establishing an instrument to direct or control the ownership of property passing or distributable after the decedent’s death from one other than the decedent when the property is to be appointed by the terms of the decedent’s will or is to pass or be distributed as a part of the decedent’s estate or its transfer is otherwise to be controlled by the terms of the decedent’s will. These limitations shall not apply to proceedings to construe probated wills or determine heirs of an intestate. In cases under (1) or (2) above, the date on which a testacy or appointment proceeding is properly commenced shall be deemed to be the date of the decedent’s death for purposes of other limitations provisions of this chapter which relate to the date of death.

Enactment of this technical correction will permit informal or formal appointment of a personal representative, and the formal filing of a will (if any), so as to transfer real estate includable in an intestate or testate decedent’s probate estate to the decedent’s heirs or devisees even if more than three years have passed from the decedent’s date of death.

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[1] Belknap, Thomas H., Newhall’s Settlement of Estates & Fiduciary Law in Mass. 7 (5th ed. 1994 & 1997 Supp.).

[2] M.G.L. c. 190B, §§3-302 and 3-401.

[3] For more on the technical corrections contained in S. 00704, see Mark A. Leahy, Esq.’s excellent outline and commentary on the MUPC.

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The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org/ or call 617-742-0625

T&E Litigation Update - Farrell v. McDonnell; Murphy v. Prescott; Kaiden v. Zimonja

Author:

Mark E.Swirbalus, Esq., Goulston & Storrs, P.C.

The T&E Litigation Update is a recurring column summarizing recent trusts and estates case law. If you have question about this update or about T&E litigation generally, please feel free to e-mail the author by clicking on his name above.

Farrell v. McDonnell

In Farrell v. McDonnell, Case No. 11-P-589 (May 11, 2012), the Appeals Court reversed a decree of the probate court disallowing a will on the ground that it was improperly executed.

The co-executors and the testatrix went to a bank for the execution of the testatrix's will. One of the co-executors handed the will to a notary at the bank and then stood off to the side. At trial, the notary could not recall the circumstances surrounding the execution, but she identified her signature and notary seal on the will and testified as to her regular practice, which was to verify a testatrix's identity, have her read the attestation and notarization clause aloud, and have her sign the will, after which the notary would sign in the notary block. Then, the notary would call two witnesses, one at a time, to witness the will in the testatrix's presence.

Like the notary, neither of the witnesses could recall the execution, but they testified as to their regular practices and identified their signatures on the will.

Based on the testimony, the probate court found that the testatrix signed her will in the presence of the notary, and thereafter that the witnesses affixed their signatures to the will in the testatrix's presence but without having seen her sign the will and without having spoken with her. Under these facts, the probate court ruled that the execution was improper because the testatrix had neither expressly nor implicitly acknowledged her signature on the will to the witnesses.

The question on appeal was whether, on these facts, an inference can properly be drawn that the testatrix acknowledged her signature to the witnesses. The Appeals Court answered this "close question" in the affirmative, holding that the testatrix had given her implicit acknowledgment to execute her will by (1) being present when the co-executor handed the will to the notary, (2) reading the attestation clause aloud, and (3) signing the will in the notary's presence. The notary then carried out the testatrix's "declaration" to execute her will according to the statutory formalities by obtaining the two witness signatures, and the testatrix sufficiently acknowledged her signature to the witnesses by remaining seated and watching, without interruption, as each of the witnesses signed.

In support of this holding, the Court explained that a testatrix's acknowledgment of a previous signature to witnesses is equivalent to signing the instrument in their presence.

Murphy v. Prescott

In Murphy v. Prescott, 81 Mass. App. Ct. 1131 (Apr. 27, 2012), a decision issued pursuant to Rule 1:28, the Appeals Court addressed objections to the reasonableness of legal fees incurred in connection with the administration of an estate.

The decedent died intestate in 2005.  His estate was valued at more than $3 million and was comprised of many (over 400) stocks and bonds, retirement accounts, savings accounts and checking accounts.  The administrator hired an accountant and a lawyer to assist him in marshalling the assets and settling the estate.  Marshalling the assets proved difficult because the decedent kept no records.  In the end, the administrator paid himself a fee of $20,000, paid $10,500 to the accountant, and paid $86,000 to the lawyer, who had entered into a fee agreement with the administrator under which the lawyer was to charge an hourly rate of $350.

A number of heirs objected to the account on which these fees were disclosed.  A trial ensued, the focus of which was the reasonableness of the $86,000 in legal fees.  In particular, the objectors argued that the lawyer failed to maintain contemporaneous records of his time.  The probate court overruled the objections and allowed the account, concluding that the legal fees were reasonable in light of the complexity of the estate.  In so concluding, the probate court noted that the total of the legal fees was less than 3% of the value of the estate.

The Appeals Court affirmed, explaining that although it would not have been unreasonable to reduce the lawyer’s fees where he did not maintain contemporaneous time records, such a reduction is not required.  The lawyer had testified at trial about the extensiveness of his work, and the probate court’s crediting that testimony was not an abuse of discretion.

Kaiden v. Zimonja

In Kaiden v. Zimonja, 81 Mass. App. Ct. 1131 (Apr. 27, 2012), a decision issued pursuant to Rule 1:28, the Appeals Court addressed the sufficiency of allegations of undue influence.

The decedent executed a will, trust, and deed pursuant to which she left a share of her assets, including her home, to a church.  The defendant, who is an attorney and elder at the church, was named as the executor and successor trustee, and the decedent also gave him a power of attorney some years later.  After the decedent’s death, her heirs brought suit against the defendant, claiming among other things that he had unduly influenced the decedent.  The heirs alleged that the decedent’s estate plan was inconsistent with her prior representations to them, that the church’s requests for money made her uncomfortable, and that she lacked sufficient intellectual acuity to understand the import of the documents. 

The defendant moved to dismiss the undue influence and other claims, which included claims for breach of fiduciary duty, breach of a confidential relationship with the decedent, breach of a promise to the decedent to care for her and enable her to remain at home, tortious interference with expectancy, and legal malpractice. The superior court granted the motion to dismiss, characterizing the claims as speculative, and the Appeals Court affirmed.

Regarding the undue influence claim, the Appeals Court held that the heirs had failed to state a claim upon which relief could be granted because there was no allegation that the defendant had drafted the estate planning documents or had advised the decedent with respect to them (“the most that can be said from the complaint is that the defendant notarized the decedent’s signature on her will, trust, and deed”), that the defendant had a relationship with the decedent such that he was able to and did influence her estate planning, and that the defendant had profited personally.  The Court noted as significant that the heirs had sued the defendant in his individual capacity, failing to name the church as a defendant or to allege that the defendant was responsible for the church’s actions and inactions.

Regarding the tortious interference with expectancy claim, which requires a showing that a defendant intentionally interfered with a plaintiff’s expectancy in some unlawful way, the Court held that “[i]n the absence of facts suggesting the defendant advised the decedent as to her estate plan or sought to influence her gifting in any way, much less an unlawful way, the claim correctly was dismissed.”

The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org/ or call 617-742-0625.

BBA Trusts & Estates Section Program Recap – April & May 2012

In April and May 2012, the Boston Bar Association’s Trusts & Estates Section offered several educational programs on timely topics and developments in trusts and estates law. In addition, the Boston Bar Association’s Title & Conveyancing and New Lawyers Practical Skills Committees offered a program of special interest to estate planning attorneys.  Below is a summary of the programs.

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CHARITABLE PLANNING OPPORTUNITIES

Wednesday, April 4, 2012

Speaker Donald Etheridge of Harvard Business School provided a broad overview of charitable planning techniques, including split interest gifts such as CLATs and CRUTs, helping participants to understand when these gifts may be appropriate for clients and providing useful insights on how to evaluate which techniques may be most appropriate.

Sponsoring Committee:  Practice Fundamentals Committee

THE NEW MASSACHUSETTS UNIFORM PROBATE CODE: WHAT REAL ESTATE ATTORNEYS NEED TO KNOW

Thursday, April 26, 2012

The balance of the Massachusetts Uniform Probate Code became effective on March 31, 2012. How does the new MUPC affect probate real estate transactions?  Attorneys Amanda Zuretti of CATIC and Zachary Allen of David Marshall Datz, PC addressed what attorneys need to know about testate and intestate succession, guardianships, conservatorships and durable Powers of Attorney under the new regime.

Sponsoring Committees:  Title & Conveyancing Committee, New Lawyers Practical Skills Committee

Program materials can be found here.

THE BASICS OF ESTATE PLANNING WITH RETIREMENT BENEFITS

Wednesday, May 2, 2012

Attorney Suma V. Nair of Goulston & Storrs, PC provided an overview of estate planning with retirement benefits, including a discussion of the most effective ways to make retirement benefits payable to trusts, traps for the unwary, the practical issues that arise when it comes time to implement beneficiary designations, and a discussion of Roth IRA conversions and what to consider when advising whether to pursue them.

Sponsoring Committee: Practice Fundamentals Committee

Program materials can be found here.

ESTATE PLANNING FOR INTELLECTUAL PROPERTY

Friday, May 4, 2012

Trademark and copyright attorney Lucy Lovrien and estate planning attorney Nancy Dempze of Hemenway and Barnes LLP discussed how to handle estate planning for intellectual property assets.

Sponsoring Section/Committee:  Estate Planning Committee, Intellectual Property Law Section

DRAFTING TRUSTS IN LIGHT OF THE MASSACHUSETTS UNIFORM PROBATE CODE AND UNIFORM TRUST CODE

Friday, May 18, 2012

Both the Massachusetts Uniform Probate Code and the Massachusetts Uniform Trust Code contain provisions that affect the administration of trusts. While the majority of these provisions can be overridden by the terms of the trust instrument under the Massachusetts Uniform Trust Code, this is less clear under the Massachusetts Uniform Probate Code.  Attorneys Eric P. Hayes and Jennifer Locke of Goodwin Procter LLP, Shira Sokal of Ropes & Gray LLP and Jane M. Dewey of U.S. Trust, Bank of America Private Wealth Management discussed various provisions that practitioners may want to consider in drafting trusts and/or may want to discuss with their clients.

Sponsoring Committee:  Estate Planning Committee

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For a schedule of upcoming programs, visit the Boston Bar Association’s online calendar.