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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).
Read moreBe Wary of Colorado Entity Renewal Notices from Unofficial Sources
/in Administration Expenses, Administration of Estate, Administration of Trust, Court Procedures, Fiduciary Dutiesby Jody H. Hall, Paralegal
In the past week, our firm has had several clients receive in the mail, and fortunately ask us about, a form titled “2019 – Period Report Instruction Form (Colorado LLCs)”. This form purports to advise the client that the annual report or renewal for their entity is now due; however, the form is not from the Colorado Secretary of State but is instead from a non-related company. The form does list the specific entity name and address information and looks deceptively official; however, it also specifically states “… is not a government agency and does not have a contract with any governmental agency to provide this service.”
Read moreEthical Issues Surrounding Pro Se Litigants
/in Fiduciary Litigationby Brooke Simons
Pro se litigants present a unique set of challenges when encountered in the practice of law. In particular, pro se litigants seem to be on the rise on the fiduciary litigation context. Whether this is due to the highly personal nature of fiduciary litigation or perhaps the increase in the availability of a form-based approach by the courts, it is unclear. What is clear is that this variety of “opposing counsel” presents their own specific set of difficulties when running the litigation gauntlet.
Pro se litigants are not represented by counsel and have instead voluntarily taken on the challenge of representing themselves. Their lack of legal experience and training in a highly nuanced and specialized area of law often creates a perfect storm of confusion. You may find a pro se litigant looks to you, opposing counsel, for guidance as they are unfamiliar with the litigation process; however, it is important to remember that your duty is to your client.
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