Missives

Take-Away: The House of Representatives passed its version of the SECURE Act last week [H.R. 1994.] The Legislation now moves to the Senate for review and probable modification. A couple of big changes will come with the SECURE Act, if it becomes law. While some of the changes are minor ‘tweaks’ that are designed to […]

Take-Away: Michigan now recognizes self-settled asset protection trust with its adoption of the Qualified Dispositions in Trust Act. As a bit of a surprise is the fact that other trusts can be treated by courts as self-settled, which can be a bad thing when there are creditors looking for assets to seize in satisfaction of […]

Take-Away: A trustee can own and control an IRC 529 account. However, it is possible that the terms of the trust instrument might impose limits on the amount of control that the trustee can exercise over the IRC 529 account. Case: Alberhasky v. Alberhasky, Iowa Court of Appeals, No. 18-0927 (May 15, 2019) Facts:  Hard […]

Take-Away: With the change in focus in estate planning from saving federal estate taxes to saving federal income taxes, many durable powers of attorney should be updated to accommodate future income tax planning strategies made by an agent on the principal’s behalf. Perhaps even more important to refreshing the powers of an agent under a […]

Take-Away:  We often ask settlors if they are willing to provide a letter of wishes to assist the trustee in the administration of an irrevocable trust, especially a trust that is expected to last for multiple generations. But that request begs several questions, including: What if that letter of wishes creates confusion since it is […]

Take-Away: A trustee is obligated to keep qualified trust beneficiaries reasonably informed about the administration of the trust and of the material facts necessary to protect their interests in the trust. In addition, a trustee is normally required to promptly respond to a trust beneficiary’s request for information that is related to the administration of […]

Take-Away: We regularly refer to a funded revocable trust as a will substitute. In many respects, that is a correct description. However, that description is not entirely correct. Background: Legal treatises and commentators regularly refer to a revocable trust as a will substitute. That is also how most estate planning attorneys and their clients refer […]

Take-Away: The tax law is silent if the owner of a 529 account has any fiduciary duty to the designated beneficiary of the 529 account. The creation and funding of a 529 account is treated much like a revocable gift because the account owner can retrieve the assets held in the 529 account at any […]

Take-Away: A beneficiary’s power of withdrawal over a trust is normally treated as a general power of appointment. If the trustee is given the power to withhold an otherwise permissible withdrawal by the beneficiary, the trustee’s power may be viewed as a required consent to the exercise of the power of appointment, sufficient to prevent […]

Take-Away: A few of the states that have adopted the Uniform Trust Code (UTC) have created come confusion between the common law and that uniform law’s authorization to modify a trust to reflect changes in the beneficiary’s circumstances (or in some instances the beneficiary’s desires.)  Many trust beneficiaries simply want their trust terminated to be […]