Trusts & Estates Law
All is Not Lost: Copy of Will Lost by Corporate Fiduciary Admitted to Probate August 21, 2015, 11:06 AM
Sometimes all is not lost when the Will is lost. The Code of Virginia only allows an original document meeting other statutory requirements to be probated but more and more Virginia Circuit Courts are allowing a copy of a Will to be probated if the presenter can prove that the actual original Will was not in the testators possession. If a bank, trust company or perhaps another professional such as an attorney or accountant, is in possession of a testators Will, and the Will is not able to be located, there arises a presumption of lost Will and a photocopy of the Will may be probated. Family members who would inherit under intestacy, but who would not inherit under the Will, may make claims that the testator purposefully revoked the Will during his or her lifetime, however, they will have to establish their position with clear and convincing evidence.
But My Tax Expert Told Me**** August 21, 2015, 10:27 AM
We all know April 15th and the tax filing and payment deadline is almost upon us. Since the Supreme Courts Boyle decision in 1985 (United States v. Boyle, 469 U.S. 241 (1985)), most tax practitioners have operated on the belief that the Courts ruling was an outright holding that the taxpayers reliance on a tax professionals advice was not reasonable cause for failure to pay or file on time and that either would result in imposition of late payment and/or late filing penalty and interest. The 3rd Circuit Court of Appeals (3rd. Cir.) has now shone a little light at the end of the tunnel in the Thouron (Thouron v. U.S., 752 F.3d 311 (2014)) decision and the door is cracked slightly for the taxpayer to obtain possible relief from imposition of those penalties and interest.
Hindsight is 20-20: Simple Estate Planning Steps We Wish Clients Would Take Before Death August 20, 2015, 3:32 PM
Attorneys in the Kaufman & Canoles Private Client Services Group regularly represent what lawyers call personal representatives: those who are administering decedents' estates, serving as executor under a will or serving as trustee named in a living trust. Time and again we see estate and trust administration complicated or made more costly because of the failure of the decedent to take simple steps during life. Many people die without any planning in place. It is estimated that 40 percent of older Americans have no will. Abraham Lincoln (a lawyer), Sonny Bono and Pablo Picasso all died intestate. But once a person has taken the big important planning steps of creating estate plan documents, some simple, yet key follow up work will save a personal representative work and save the estate money. Some of the more notable or common missed planning opportunities are as follows:
2013 Virginia Legislative Update – Trusts & Estates Law July 29, 2013, 3:33 PM
The 2013 session of the Virginia General Assembly resulted in several important changes to trusts and estates law, most of which became effective July 1, 2013. Below are some of the more notable changes.
It’s Not Set in Stone: Reciprocal Wills Do Not Automatically Create an Irrevocable Estate Plan March 22, 2013, 3:33 PM
In a world with an ever increasing number of blended families and second marriages, it is not uncommon for couples to desire to treat all of their children and step-children equally. On many occasions such couples elect to prepare wills or revocable trusts that provide for all assets to pass to the surviving spouse, and upon the death of the surviving spouse, to pass such assets to all of the husbands children and the wifes children, with each child getting an equal share. Alternatively, sometimes a couple may decide that upon the death of the second spouse, one-half of the assets will pass to the husbands children and one-half of the assets will pass to the wifes children.
Taxation of Corporate-Owned Life Insurance: Traps for the Unwary October 25, 2012, 3:36 PM
Most corporate clients assume that proceeds of a life insurance policy insuring the life of an employee are tax free. Revisions to the Internal Revenue Code in 2006 provide, however, that life insurance proceeds are included as taxable income of the corporate owner of a life insurance policy unless certain IRS requirements are met.
Stuff Happens August 15, 2012, 3:36 PM
When parties get together contemplating a proposed new venture, it is similar to a new marriage. They are very excited about the future opportunities, but have not really thought through the issues if events do not go as anticipated. Whether the venture takes the legal form of a corporation, limited liability company or partnership, many issues are common with each. While the parties may recognize that it is appropriate to have a buy-sell agreement, operating and/or partnership agreement depending on the particular entity (collectively entity agreement), at the initial stages of the venture they may not have either the resources or the historical perspective to appreciate and plan for what is going to or could happen down the road as their circumstances change. As they continue to make money and develop the business, one of the last things with which they typically wish to deal, is updating the entity agreement or dealing with problems for which there may be no easy solutions. Unfortunately, when one party later wishes to retire or has a terminal illness, they may find that their lack of planning not only puts their future, but also that of their family in a situation which was never contemplated. The consequences can be even more significant if the business interest represents the major asset of the owners estate.
2012 Virginia Legislative Update – Trusts & Estates Law August 14, 2012, 3:37 PM
The 2012 session of the Virginia General Assembly resulted in several important changes to trusts and estates law, most of which became effective July 1, 2012. Below are some of the more notable changes.
Interference with Inheritance: A Novel Legal Theory July 18, 2012, 3:38 PM
Unless you closely followed the legal victory of the late Vicki Lynn Marshall, a.k.a. Anna Nicole Smith, you are probably unfamiliar with the legal action known as tortious interference with expectancy of inheritance or gift. While this tort has been rejected by Virginia courts, it has long been recognized in North Carolina as well as at least nineteen other states. Where it is a cognizable claim, the tort is committed when a third party through fraud, duress, undue influence, or some other tortious means intentionally interferes with the receipt of a beneficiarys expected inheritance or gift. In order to be successful, a claimant must provide proof that, but for the interference, the bequest or gift would have been made.
Self-Settled Spendthrift Trusts June 28, 2012, 3:38 PM
As of July 1, 2012, Virginia will permit the creation of self-settled spendthrift trusts. Under the new law1, a settlor may establish a qualified irrevocable discretionary trust which will not be subject to the settlors creditors claims.