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Colorado to Make Remote Notarization Authorization Permanent
/in Administration of Estate, Administration of Trustby Jody H. Hall
In one of the many responses necessary to continue crucial business and legal services at the onset of the current pandemic, Colorado notaries became authorized to perform remote notarizations under Governor Polis’s Executive Order D 2020 019 dated March 27, 2020. That authorization has now been made permanent by SB 20-096 which was signed into law on June 26, 2020. The bill will codify the current temporary rules for remote notarization until December 31, 2020. The bill will then take effect on December 31, 2020, along with permanent rules. Read more
Will Normal Advanced Directives be Sufficient for COVID-19?
/in Estate Planning, Powers of Attorneyby Carol Warnick
While we deal with an unprecedented global pandemic which alters life as we know it for all of us, COVID-19 brings up concerns regarding our clients’ Advanced Directives that were prepared and signed during “normal” times.
When thinking about being in a terminal or a persistent vegetative state, a client may have filled out a form with a prohibition against “excessive” medical treatments, such as being intubated using breathing machines, respirators, or ventilators. If that same client contracts COVID-19, intubation may be a life-saving treatment and one that the client would want to have available to him or her.
Read moreTax and Estate Planning Perspectives
/in Estate Planning, Legislation, Powers of Attorney, Taxesby Kami A. Pomerantz
From a tax and estate planning perspective, we would like to make you aware of the following:
Tax Filing Extensions:
The IRS has extended the filing and payment deadline for all 2019 income tax returns to July 15, 2020. This means that no penalty or interest will be assessed for an individual’s failure to file or pay income taxes, regardless of amount, until after July 15, 2020.
Read moreArbitration Clause Held Not Enforceable as to the Validity of the Trust Amendment
/in Administration of Estate, Administration of Trust, Arbitration, Estate Planning, Fiduciary Litigationby Carol Warnick
There has been considerable discussion regarding including arbitration clauses in estate planning documents over recent years. Some estate and trust attorneys are actively pushing for the inclusion of such clauses. Recently, an Arkansas Appellate Court held that an arbitration provision in a trust, if enforceable at all, would not be enforced to determine the validity of a trust document – in this case a trust amendment.[1]
The decedent’s revocable trust already provided an arbitration clause, but just before his death, he signed a trust amendment expanding the arbitration clause to purportedly cover all disputes and be binding on all trustees and beneficiaries.
Read moreFinding Lost Life Insurance Policies
/in Administration of Estate, Administration of Trust, Estate Planning, Life Insuranceby Jody H. Hall
As a probate paralegal, I often assist personal representatives, trustees and family members in collecting information about their loved one’s assets. Life insurance proceeds can be a blessing to the family to pay for expenses and in relieving the financial burden after a death. However, while the client may think they remember the deceased person having life insurance, they may not be able to locate any existing policies or have access to related documents. In addition, the life insurance company may have changed names or merged, many times more than once, since the policy was issued. If the policy was paid up, no correspondence may have been sent to the insured for literally decades. A non-family member or professional fiduciary may not have any information about insurance at all.
In 2016, the National Association of Insurance Commissioners (NAIC) created the Life Insurance Policy Locator to help address the growing problem of millions of dollars in unclaimed life insurance proceeds. The Life Insurance Policy Locator along with Frequently Asked Questions can be found here: https://eapps.naic.org/life-policy-locator/#/welcome
The client should continue to review the deceased’s important papers, research bank accounts for evidence of premium payments, and search online to find successor companies for old policies. But when specific information cannot be located, this resource could potentially find those lost benefits for the family. The requestor should need to be a person authorized to received information (note that the Attorney or Legal Representative for the Deceased is an option on the NAIC request) and will need to provide pertinent details about the deceased. According to the Colorado Department of Regulatory Agencies, more than $92.5 million in life insurance proceeds was matched with beneficiaries in just the first year of the locator.
I have not yet used the Life Insurance Policy Locator, but I am thankful to have a resource to provide to those clients where that illusive policy just cannot be located.
Trustees Beware: Provide Timely Information to Beneficiaries
/in Administration of Estate, Administration of Trust, Fiduciary Duties, Fiduciary Litigation, Personal Representative, Removal of Fiduciary, Surcharge of Fiduciary, Trusteeby Carol Warnick
Individual trustees often fail to fulfill the duties imposed on trustees, not only by the trust instrument, by also by the trust statutes applicable in the jurisdiction. It is often the case that the individual trustee is a member of the family and seems to believe that the rest of the family won’t care if he or she doesn’t follow the applicable statutory and trust requirements.
A recent Nebraska case, In Re Estate of Forgey, 906 N.W. 2d 618, (Neb. 2018), featured a decedent who died in 1993. By 2013, when one of the family members initiated litigation, the trustee, a son of the decedent, had neither distributed out the property of the trust into the separate shares called for by the trust document, nor had provided annual accountings to the beneficiaries as required by both the Nebraska statutes and the trust document itself. In addition, he failed to sign and file the timely prepared federal estate tax return, resulting in an IRS assessment of penalties and interest of over $2 million.
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