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This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author. This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.
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Safeguarding Estate Planning Documents
/in Administration of Estate, Administration of Trust, Estate Planningby Carol Warnick
In light of the recent dramatic weather events, including hurricanes and tornadoes, it is a good time to discuss preservation of estate planning documents. In many instances, people escape from their homes with only the clothes on their back, or even if they do have a bit of time to gather items to take, they may not think about their estate planning documents.
Read moreNew IRS Addresses for Filing Estate Tax Returns
/in Administration of Estate, Administration of Trust, Court Procedures, Fiduciary Duties, Taxesby Jody H. Hall, Paralegal
The Instructions for Form 706 released in November 2018 included new addresses; however, we felt a reminder could be useful since the filing address changed mid-year. Effective for United States Estate (and Generation-Skipping Transfer) Tax Returns (Form 706) filed after June 30, 2019, Form 706’s should no longer be sent to the Cincinnati campus for filing, but should instead be sent to:
Department of the Treasury
Read moreInternal Revenue Service
Kansas City, MO 64999
Best Practice Tip: TPP Memos
/in Estate Planning, Fiduciary Litigation, Will & Trust Constructionby Brooke Simons
When viewing an estate as a whole, Tangible Personal Property (“TPP”) is not usually the most financially significant component. However, it is often the single most bitterly disputed area in an estate.
Often times, when TPP is being administered under an estate, there are specific provisions in the will as to how the estate should be distributed, but nothing directly addressing specific items of TPP, such as the china collection or Mom’s recipe box. If one spouse dies first, then under C.R.S. § 15-11-805, there is a general presumption that all TPP in the joint possession or control of spouses is held in a joint tenancy with right of survivorship. (“[T]angible personal property in the joint possession or control of the decedent and his or her surviving spouse at the time of the decedent’s death is presumed to be owned by the decedent and the decedent’s spouse in joint tenancy with right of survivorship if ownership is not otherwise evidenced by a certificate of title, bill of sale, or other writing.”). This means that if you are married when you die, then your TPP will go to your spouse, who will then own the TPP outright and be able to dispose of it as they see fit.
Read morePossible Legislative Change for Retirement Planning
/in Legislation, Taxesby Kami Pomerantz
On May 23, 2019, the U.S. House of Representatives passed the Setting Every Community Up for Retirement Enhancement Act of 2019 (H.R. 1994) referred to as the SECURE Act. The SECURE Act passed with broad support in the House with a vote of 417-3. The SECURE Act incorporates many provisions in Retirement Enhancement Savings Act of 2019 (S. 972), also known as RESA, which has extensive bipartisan support in the Senate. Recently a small group of Senators blocked passage of RESA in an attempt to allow 529 Plan funds (educational savings account funds) to be used to support home-schooling. However, due to generally strong bipartisan support in the Senate and House as well as retirement plan industry support, it is expected that some form of RESA will ultimately pass, the two bills will be reconciled, and that the reconciled bill will become law.
The SECURE Act makes it easier for many Americans to save for retirement. Most of the provisions provide more flexibility to employers and reduce administrative costs regarding creation and implementation of employer related retirement plans. It is hoped that these reforms will allow employers to create more robust retirement plans and to encourage their employees to participate in such plans.
Read moreReminder – Mandatory Notice Provisions in CUTC
/in Administration of Trust, Fiduciary Duties, Fiduciary Litigation, Surcharge of Fiduciary, Trustee, Will & Trust Constructionby Brooke Simons
As we have just passed the one-year anniversary of the CUTC being signed into law, now seems like an appropriate time to go over a few reminders with regards to its mandatory provisions – in particular the Notice provisions.
The CUTC is generally considered to be a default statute – that is, a statute that can be overridden by the settlor’s intent as reflected in deliberate drafting of the trust instrument. However, there are thirteen (13) mandatory provisions in the CUTC that cannot be drafted around, regardless of the settlor’s intent. Section 15-5-105 lists the thirteen (13) mandatory provisions under the CUTC. Amongst these thirteen provisions are two “notice” requirements that must be satisfied.
Read moreWyoming Creates a New Chancery Court Which Will Hear Trust Cases
/in Administration of Trust, Court Procedures, Fiduciary Discretion, Fiduciary Duties, Fiduciary Litigation, Legislation, Removal of Fiduciary, Surcharge of Fiduciary, Testamentary Intent, Trustee, Will & Trust Constructionby Carol Warnick
Wyoming has created a chancery court which will be authorized to hear cases in fifteen (15) specific areas, including cases alleging breach of fiduciary duty and transactions governed by the Wyoming Uniform Trust Code, in addition to hearing business disputes. This represents a significant change in the way many trust disputes, as well as business disputes, will be handled in Wyoming.
Effective March 15, 2019, the special court of limited jurisdiction, called the Chancery Court of the State of Wyoming, was authorized to assist in the expeditious resolution of disputes involving commercial, business, trust and similar matters. It is directed “to employ nonjury trials, alternative dispute resolution methods and limited motions practice and shall have broad authority to shape and expedite discovery as provided in the rules adopted by the supreme court to govern chancery courts.” WYO. STAT § 5-13-115 (a).
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