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You’re Invited! 5th Annual Fiduciary Solutions Symposium
/in UncategorizedMONDAY, OCTOBER 23, 2017
7:30 – 8:00 a.m. – Breakfast and Registration
8:00 – 10:00 a.m. – Presentation
Grand Hyatt Denver
Capitol Peak A, 555 17th Street, 38th Floor
Denver, CO 80202
ABOUT THE SYMPOSIUM
Every day, the Fiduciary Solutions Practice Group at Holland & Hart addresses legal issues that impact fiduciaries and beneficiaries and litigates issues that arise in those relationships. Working to deal with conflicts arising from the transfer of wealth requires insight and vigilance. Our seasoned group of problem solvers will share their experiences, perspectives, practice tips, and wisdom to arm you with the knowledge to help improve your fiduciary relationships.
Topics will include:
Holland & Hart Panelists:
2 General CLE Credits Approved
For more information please contact Jennifer Mauk at jamauk@hollandhart.com or 303.295.8349
Decanting to Eliminate a Beneficiary – New York Says Yes
/in Administration of Trust, Court Procedures, Fiduciary Discretion, Fiduciary Duties, Fiduciary Litigation, Removal of Fiduciary, Surcharge of Fiduciary, Testamentary Intent, Trustee, Will & Trust Constructionby Kelly Dickson Cooper
Settlors often ask whether they can change the beneficiaries of an irrevocable trust because life circumstances or relationships have changed. Often, the answer is no. However, in a recent case in New York, the trustee was able to accomplish the settlor’s desire to disinherit one of his children through a decanting. Read more
Fifty Ways to Leave Your Lover (or Fifty Ways to Plan, Administer and Litigate Estates)
/in Administration Expenses, Administration of Estate, Administration of Trust, Bonds, Conservator, Court Procedures, Fees, Fiduciary Discretion, Fiduciary Duties, Fiduciary Litigation, Guardian, Life Insurance, Personal Representative, Powers of Attorney, Removal of Fiduciary, Surcharge of Fiduciary, Testamentary Capacity, Testamentary Intent, Trustee, Undue Influence, Will & Trust Constructionby Carol Warnick
As the old song by Paul Simon contemplates, there are fifty ways to leave your lover, and there are also fifty ways to plan, administer and litigate estates and trusts. I have recently become aware of various situations in which attorneys assume that because things are done a certain way in the state in which they practice, they are done the same way in other states.
I am licensed in three states, Colorado, Utah and Wyoming, and deal regularly with the significant differences between them. For example, Colorado tends to use “by representation” in dealing with passing assets down the generations, but Utah and Wyoming both use “per stirpes.” Read more
Fiduciary Duty of Loyalty: Which Interest is Best?
/in Administration of Trust, Fiduciary Discretion, Fiduciary Duties, Fiduciary Litigation, Trusteeby Matthew Skotak
The term “fiduciary” can be considered a vague term that encompasses many different people and several different relationships. Under Colorado law, a fiduciary includes, without limitation, a trustee of any trust, a personal representative, guardian, conservator, receiver, partner, agent, or “any other person acting in a fiduciary capacity for any person, trust, or estate.” Colo. Rev. Stat. § 15-1-103(2). It is within this context that we examine a fiduciary’s duty of loyalty and how best to uphold that duty.
In the context of a trust, and as stated in the Restatement (Second) of Trusts § 2, a fiduciary relationship with respect to property arises out of the manifestation of an intention to create the fiduciary relationship and subjects the trustee “to equitable duties to deal with the property for the benefit of another person.” From this relationship stems several inherent and implied fiduciary duties. Generally, the fiduciary duties applicable to a trustee are: the duty of loyalty, the duty to exercise care and skill in managing the trust assets and administering the trust, and the duty to remain impartial to all beneficiaries. Read more
Good News for Surviving Spouses Seeking to Elect Portability
/in Administration of Estate, Administration of Trust, Fiduciary Duties, Personal Representative, Trusteeby Chelsea May
IRS Revenue Procedure 2017-34, effective as of June 9, 2017, increases the amount of time that a surviving spouse has to file an estate tax return (Form 706) for the purpose of electing portability of the Deceased Spousal Unused Exclusion amount (otherwise known as “DSUE”). The portability election, which was first introduced in 2010 and made permanent under the American Taxpayer Relief Act of 2012, offers a great way for a surviving spouse to preserve the unused estate tax exemption of their deceased spouse. The DSUE amount can then be added to the surviving spouse’s own exemption amount and be used to shelter the surviving spouse’s lifetime gifts and transfers at death from estate taxes.
Prior to June 9, 2017, a portability election was required to be made on a timely filed estate tax return, due to the IRS nine months from the decedent’s date of death, with the availability of an automatic six month extension. The IRS has once before provided some relief from this deadline in Revenue Procedure 2014-18, but that ruling was temporary and provided no relief for the estates of decedents dying after January 1, 2014. The IRS claims to have been flooded with numerous requests for an extension of time to file for the portability election and has issued this new Revenue Procedure to provide a simplified method to obtain the extension to elect portability for a decedent’s estate who has no estate tax filing requirement to the later of (i) January 2, 2018 or (ii) the second anniversary of the decedent’s date of death. Note that the regulation provides that this longer deadline is not available to the estate of a decedent if an estate tax return was timely filed. In such case, the executor either will have elected portability by timely filing the return or will have affirmatively opted out of portability by not making the election. Read more
New Uniform Directed Trust Act
/in Administration of Trust, Court Procedures, Fiduciary Discretion, Fiduciary Duties, Fiduciary Litigation, Legislation, Trustee, Will & Trust Constructionby Kelly Dickson Cooper
More and more, I review trust agreements that appoint a trustee, but then appoint other individuals or institutions to perform certain tasks that are normally in the domain of the trustee. They are sometimes referred to as trust protectors, trust advisors, trust directors, special powerholders, investment trustees, or distribution trustees. I most often see these appointments in the areas of investments or distributions.
The trust language that attempts to divide the responsibilities of a trustee among a group is often unclear and give rise to difficult questions as to the scope of each individuals’ responsibilities. There is also the question of whether the trustee is responsible for the actions of the other appointees and if the appointees are fiduciaries. These problems with interpretation are often exacerbated because the laws are not clear about the division of these responsibilities and the liability of each actor. Read more