By:  Kerry Reilly, Esq.

Estate of James A. Elkins, Jr. v. Commissioner

13-60472 (5th Cir.)

Filed: September 15, 2014


James A. Elkins, Jr. (“Decedent”), a Texas resident, owned a fractional share of 64 pieces of modern art at the time of his death.  Decedent owned 50% of the interest in two pieces of art and 73.055% interest in the other 62 pieces.  The Decedent’s children (“Petitioners”) held the remaining interests in the artworks and also served as the Executors of his estate.  Two of the art pieces were subject to a “lease agreement” whereby no interest in the works of art could be disposed of without the assent of all co-owners and no co-owner could transfer or assign his/her “rights, duties and obligations” without the prior agreement of all other co-owners.  With respect to the remaining pieces, a “Co-Tenants Agreement” governed each.  That agreement contained similar limitations.

In determining the estate taxes due upon the death of Mr. Elkins, the Petitioners retained Sotheby’s Inc. to determine value of the individual pieces and the Decedent’s pro-rata share of the artworks and Deloitte, LLP to determine the appropriate discount for lack of control and marketability.

Upon the timely filing for the Decedent’s Form 706, the Internal Revenue Service refused to allow any discount for the works of art and assessed a penalty against the Decedent’s estate of $9,068,266.    The Decedent’s estate challenged this penalty.

Tax Court Proceedings:

In the Tax Court proceedings, the Petitioners supplied evidence from three experts in addition to the Sotheby’s and Deloitte reports – a Texas lawyer, who was an expert on the time and cost associated with litigating restraints on alienation, an expert on valuation of fractional interests in property and an expert in the art market.

The Commissioner supplied one (admitted) rebuttal witness who claimed that “no recognized, [or established] market” existed for partial interests in works of art. In refusing to deviate from the “no discount” position the Commissioner supplied no evidence as to what an acceptable discount might be in the event the Tax Court disagreed.

The Tax Court rejected the Commissioner’s position that no discount was applicable under the “willing buyer/seller” test, however it also rejected the valuations provided by the Petitioners and applied its own discount of 10% for each work of art and assessed the related penalty.  The Decedent’s estate appealed.


Is the Decedent’s estate taxable on the undiscounted value of the fair market value of the artworks or the discounted value; and if it is the discounted value which discounted value applies (1) the Tax Court’s 10% or (2) the percentages supplied by the Decedent’s estate?

Discussion and Decision:

The Fifth Circuit affirmed the Tax Court’s ruling with respect to the rejection of the Commissioner’s argument as to the “zero discount” because a “willing buyer and seller” would take into account the various restrictions on the artwork.    The Fifth Circuit strongly disagreed with the Tax Court’s application of its own unsupported discount amount.

In this concisely written opinion, the Court spent a fair amount of time discussing burdens of proof and evidentiary standards.  The Court noted that the “uncontradicted, unimpeached and eminently credible” nature of the Petitioner’s evidence and the complete lack of evidence from the Commissioner should have resulted in a decision for the Decedent’s estate with respect to the value of the discounts.

The Court noted that the “reversible error” was mainly found Tax Court’s analysis of the “willing buyer/seller” test.  The Court took issue with the Tax Court’s extensive focus on the Decedent’s children as the remaining owners, its insufficient attention to the “willing buyer” and the assumption that the “buyer” would immediately flip his/her interest back to the children at a market rate.  The Court noted that the Decedent’s children are “sophisticated, determined and financially independent,” and that they had rejected entirely the thought of ever selling their interests in the artwork, or the artwork itself.    The Court further notes that in the ‘absence of an established market,’ with the subjective characteristics of the other owners and the time and money it would cost a prospective “willing buyer” to overcome the legal restraints on the artwork the “willing buyer” would likely demand further discounting.

The Court (1) affirmed the Tax Court’s rejection of the “no fractional ownership discount” assertion, (2) affirmed the Tax Court’s holding that the Decedent’s estate may apply fractional-ownership discounts, (3) reversed the Tax Court’s holding that 10% was the appropriate discount, (4) held that the appropriate discounts were those supplied by the estate of the Decedent and (5) rendered judgment in favor of the Petitioners for $14,359,508.21 plus statutory interest.


The Court also noted, in a footnote, that the Commissioner’s rebuttal witness actually weakened the Commissioner’s argument in that by stating that “no recognized market” existed for fractional interests in artwork, the discounts applied to the various pieces should have been greater.

The Basics of Purposes Trusts – Materials from October Brown Bag Lunch

Please follow the link below to obtain the materials from the October Brown Bag lunch on “The Basics of Purpose Trusts.”  This program helped attendees understand the concept of a trust without beneficiaries and how they may be used in an estate plan.  Alexander A. Bove, Jr. of Bove & Langa, P.C. was the speaker.—boston-bar-association—october-21-2014D91F18460431.pdf?sfvrsn=2

IRS Recognizes State Court Trust Reformation in Federal Gift and Estate Tax Matter

Author:  Matthew Conroy, J.D., CFP®, Argent Wealth Management, LLC

Private Letter Ruling 2014-36036 – IRS Recognizes State Court Trust Reformation in Federal Gift and Estate Tax Matter

 In PLR 2014-36036, the IRS was asked to rule on the impact of federal estate and gift taxation on a state judicially-reformed irrevocable trust. Original language in the trust conferred a general power of appointment on a trust beneficiary, which upon reformation was changed to a special power of appointment. The IRS recognized the state’s authority to reform trusts and stated it would apply federal tax law based on the amended provisions of the trust.


Five settlors created and funded an irrevocable trust. The trust beneficiary was given a testamentary power of appointment, with no limitation on the exercise of such appointment in favor of the beneficiary’s estate, beneficiary’s creditors, or creditors of beneficiary’s estate. The settlors subsequently learned that this trust provision was contrary to their original intent.  They petitioned their state’s court to reform the trust, requesting that the beneficiary’s general testamentary power be replaced with a special limited testamentary power.  The state court agreed that a scrivener’s error had occurred and reformed the trust retroactive to the creation date.

As there are material estate and gift tax consequences in the exercise and release of powers of appointment, the settlors requested a PLR to determine the extent of the IRS’ recognition of the reformed trust language.


1.  Will the IRS recognize the reformed trust, and not include assets subject to the reformed testamentary power of appointment in the beneficiary’s estate?

2.  Will the reformation be considered a deemed release of the general power, thereby subjecting the beneficiary to gift taxation on the assets?


Section 2041(a)(2) of the Internal Revenue Code includes in the value of the gross estate any property over which the decedent had a general power of appointment. Section 2514(b) provides that the exercise or release of a general power of appointment is deemed a transfer of property by the individual possessing the power.

In this Private Letter Ruling, the IRS cited U.S. Supreme Court case Commissioner v. Estate of Bosch, 387 U.S. 456 (1967).  This case considered whether a state trial court’s ruling would be conclusively binding on a federal agency in matters of estate taxation. The Court concluded that only those rulings from the highest court of the state would be binding when applied to a federal matter. However, in the absence of such a ruling, the federal authority may give “proper regard” to lower state court rulings. The federal authority would in effect “sit as a state court” when making its decision.


Because the current case was not heard in the highest court of the state, the IRS instead gave “proper regard” to the lower court’s reformation of the trust. The IRS found that the court’s correction of a scrivener’s error was consistent with state law as would be applied by the highest court of the state.

The IRS concluded that the reformed testamentary power of appointment would not be considered a general power of appointment so as to include trust assets in the beneficiary’s estate. Further, the reformation was not considered a deemed exercise or release of the beneficiary’s general power, which would subject the beneficiary to gift tax.


This taxpayer-friendly ruling should give practitioners some peace of mind that state judicial reformations will be respected by the IRS. It should be noted that absent a ruling from a state’s highest court, the IRS keeps open the possibility of making rulings inconsistent with lower courts, even after giving them their proper regard.

Please note that a Private Letter Ruling is only directed to the taxpayer requesting it, and cannot be used or cited as precedent.

Materials from September Brown Bag Lunch

Please follow the link below to obtain the materials from the September Brown Bag lunch on “Trust Administration within the New Paradigm of Estate Planning.”  At this program attendees learned what to consider and think about when drafting and administering trusts in the current income and transfer tax environment.  Brett J. Barthelmeh of Squillace & Associates, PC was the speaker.—brett-barthelmeh-materials128B2099CA30.docx?sfvrsn=2

Effective Immediately for Informal and Formal Estate Proceedings – Probate & Family Court announces new notice requirements to the Division of Medical Assistance

Below is the content of the recent Press Release from the Probate and Family Court Department on the new notice requirements to the Division of Medical Assistance:

“Probate and Family Court Department Announces New Notice Requirements to the Division of Medical Assistance, Estate Recovery Unit, For Informal and Formal Estate Proceedings

As a result of recent legislative changes to Massachusetts General Laws Chapter 190B, in an informal proceeding to probate an estate (with or without a will), a petitioner is now required to give written notice to the Division of Medical Assistance, Estate Recovery Unit (“DMA”), at least seven (7) days prior to filing an informal petition (MPC 150) by sending a copy of the informal petition and death certificate to DMA by certified mail. See G. L. c. 190B, § 3-306(g), as added by St. 2014, c. 165, s. 174.1   Procedurally, the Probate and Family Court shall continue to rely on the affirmative statement made by the petitioner in the informal petition that notice was provided to DMA.

In addition, in a formal proceeding to probate an estate (with or without a will), a petitioner is now required to give citation notice to DMA by mailing a copy of the citation by certified mail, in accordance with the Order of Notice, together with a copy of the formal petition (MPC 160) and death certificate. See G. L. c. 190B, § 3-403(g), as added by St. 2014, c. 165, s. 175.2   Procedurally, the Probate and Family Court shall require that the petitioner certify on the Return of Service that citation notice was provided to DMA.


The above is effective immediately.

For more information, contact Evelyn J. Patsos, Esq., at (617) 788-6613 or by email at [email protected]

G. L. c. 118E, § 32(a) as currently enacted refers to § 3-306(f) in error. See G. L. c. 118E, § 32(a), as amended by St. 2014, c. 165, s. 149. Legislative change is required to correct this error.

2 G. L. c. 118E, § 32(a) as currently enacted refers to § 3-403(f) in error. See G. L. c. 118E, § 32(a), as amended by St. 2014, c. 165, s. 149. Legislative change is required to correct this error.”


Middlesex and Essex Probate Courts Announce New Procedures for Informal Probate Petitions

Below is a Press Release from Middlesex Probate Court and a Memorandum from the Essex Probate Court on their new procedures relating to Informal Probate Petitions:


Date: July 9, 2014

From: Tara DeCristofaro, Register of the Middlesex Probate and Family Court

Re: New “Walk-In” Procedure for Estate Administration Informal Petitions

Contact: Jack Twomey, Administrative Deputy Assistant Register, 617-768-5995



Tara E. DeCristofaro, Register of the Middlesex Probate and Family Court, has announced that she will be piloting a walk-in session for informal petitions. The walk-in session will be available in the Registry every Tuesday afternoon from 12:00 pm. – 3:00 pm., beginning August 5, 2014. If the program is well received, plans are to expand it to multiple days per week.

“I am hopeful that this new procedure will assist the bar and self-represented litigants by dramatically reducing the wait time to informally appoint a personal representative or probate a will in estate administration cases.” said DeCristofaro.

To take advantage of this program, the informal packet must be complete and include all the necessary documents and filing fees. “You are advised to visit the Probate and Family Court MUPC Hub at to review the checklist of required documents under the informal procedure and to consult the MUPC Estate Administration Procedural Guide for answers to frequently asked procedural questions. “This program is structured to speed up the wait times for informal petitions. Accordingly, we ask that participants in this walk-in service present a complete packet for allowance. Those with questions should use the public probate counter.” said DeCristofaro.

Upon successful review, consumers will be issued an Informal Order and Letter(s) of Appointment before leaving the Registry. If there are any issues with the informal packet, consumers will be instructed on what is necessary to complete the packet and be asked to return at the next available date, or if necessary, be advised of other procedural options if an informal proceeding is unavailable.

“I have heard what court users have said and have committed resources to create an informal process as envisioned by the statute. This is one in a number of initiatives my office will be making over the next year to improve the court users’ experience.”



TO:  Users of the Essex Probate and Family Court

FROM:  Pamela Casey O’Brien, Register of Probate

DATE:  September 11, 2014

SUBJECT:  Informal Probate Filings

To better serve our customers there will be a Magistrate sitting in the Lawrence Registry of Probate on Wednesdays from 8:00 a.m. to 4:30 p.m. to assist with the procession and allowance of Informal Probate Petitions.

Thank you for your attention to this matter”


Upcoming CLE on October 7th

The Trusts & Estates CLE Committee has partnered with the Family Law CLE Committee to co-sponsor a great program on The Intersection of Estate Planning and Family Law.  Below is the agenda for the program.  The content is very interesting, with current insights on the topics discussed by experienced panelists.  Please consider signing up, and share the information with your colleagues as well.

Boston Bar Association
The Intersection of Estate Planning and Family Law
Tuesday, October 7, 2014
2:00 to 5:00 p.m.

Moderator:         Stacy K. Mullaney, Vice President & Trust Counsel, Fiduciary Trust Company, Boston
Panelists:             Jillian Hirsch, Esq. Co- Chair, Day Pitney LLP
Robert J. O’Regan, Esq., Burns & Levinson LLP
Andrew Rothstein, Esq. Co-Chair, Goulston & Storrs
Mary Schmidt, Esq., Schmidt & Federico

 Introduction    5 Minutes

Section I  40 Minutes
Topic:  The Implication of Divorce on Drafting Considerations and Trust Terms
Speaker:  Jillian Hirsch, Esq.

 Section II  40 Minutes
Topic:  “The Trustee Has Been Subpoenaed: Now What?”
Speaker:  Robert J. O’Regan, Esq.

10 minute break

Section III 40 Minutes
Topic:  Non Judicial Settlement Agreements and Other New Approaches for Dealing with Trusts in Divorce
Speaker:  Andrew Rothstein, Esq.

Section IV  40 Minutes
Topic:  Pre and Postnuptial Agreements – Adequate Disclosure, Drafting Techniques and Current Planning Issues
Speaker:  Mary Schmidt, Esq.

Closing Remarks & Questions     5 Minutes

To RSVP, click here.

Conservation Law Foundation Event

Please join Conservation Law Foundation (CLF) at a free event to learn about their new Legal Services Food Hub, a legal services project connecting lawyers with pro bono opportunities to assist low income farmers and food entrepreneurs in Massachusetts. Enjoy a locally-sourced continental breakfast.  Hear about the need for this project from Roger Noonan, a farmer and President of the New England Farmers Union.  Receive training on the most common legal issues faced by these constituents from CLF and Harvard Law School Food Law & Policy Clinic staff attorneys.  Meet and mingle with fellow Massachusetts lawyers interested in using their legal skills to strengthen our local food economy and increase fresh food access.  Leave the event with a hot-off-the-press copy of the Legal Services Food Hub Legal Guide written by Harvard Law School’s Food Law & Policy Clinic.

Click here to register for the event and click here to visit CLF’s website.

Please forward this invite to attorney contacts who may be interested!  All attendees must register by Friday, June 13th.

Brissette v. Ryan

Author: Angie Guarracino, Esq., Nixon Peabody LLP

In Brissette v. Ryan, 2013 Mass. LEXIS 994 (November 29, 2013), the Appeals Court reversed a jury award to the plaintiff for $100,000 for a malpractice claim where the defendant attorney advised the plaintiff and her husband to transfer their home to their children without retaining a life estate in order to avoid healthcare liens, stating that the life estate would subject the property to healthcare liens. The defendant attorney was unaware that the law had changed a few years earlier to permit transferors to retain a life estate without subjecting the property to healthcare liens. When the plaintiff discovered the mistake she hired an attorney to reform the deed in the probate court, although the plaintiff’s son opposed the probate court proceeding and that proceeding was ultimately dismissed, leading the plaintiff to file a malpractice claim against the defendant.

After the jury verdict, the defendant filed a Motion for Judgment Notwithstanding the Verdict and a Motion for New Trial. The defendant challenged the verdict as being against the weight of the evidence and argued that the jury award was improperly grounded in sympathy and speculative damages. The Court agreed finding that the plaintiff did not incur any actual damages.

Despite the plaintiff’s claim that due to the defendant’s advice, she now owns nothing when she could have owned a life estate, the Court held that the loss of rights alone is not sufficient without proof of actual damages. The plaintiff did not testify that she had any plans to mortgage or rent the house and the plaintiff’s children never tried or threatened to evict her.

The Court felt that the jury likely felt sympathy for the plaintiff in awarding her $100,000 because the amount was speculative and there was no basis for that amount in the evidence. The plaintiff had not even presented any evidence for out-of-pocket expenses, such as attorney fees. The Court held that the plaintiff’s unease that her children might someday evict her, despite their testimony that they would never do that, and the fact that she did not show any actual damages, did not amount to an exceptional circumstance to warrant emotional distress damages.

The Court held that there were no set of circumstances which it may be reasonably inferred that the plaintiff suffered or will likely suffer damages due to the defendant’s legal representation.

MUPC Petitions: Common Mistakes and Simple Solutions

Tamara Lauterbach Sturges, Esq., Pathway Law, LLC
Kerry L. Spindler, Esq., Goulston & Storrs PC

With the second anniversary of the effective date of estate administration sections of the Massachusetts Uniform Probate Code (the “MUPC”) behind us, the Boston Bar Association’s Trusts & Estate’s Section’s Public Service Committee asked the Massachusetts Probate and Family Courts to comment on frequently made errors in MUPC filings. With the assistance of Chief Justice Angela M. Ordoñez and Case Manager Evelyn J. Patsos, Esq., MUPC Magistrates and court personnel compiled a list of common mistakes and simple solutions.

1. Petition Should be Consistent with Death Certificate: A common error is that the decedent’s name as listed on the petition does not match the name listed on the death certificate. If the will and death certificate refer to the decedent by a different name, the petition should include any alias. For example, if the death certificate identifies the decedent as “John M. Smith” and the will identifies the decedent as “John Smith”, the petition should reference the estate as “John M. Smith, also known as John Smith”.

In addition, the decedent’s address as listed on the petition should match the address listed on the death certificate. If the address of the decedent is not accurately reflected on the death certificate an Affidavit of Domicile (Form MPC 485) must be filed with the petition.

2. Suspicious Deaths: Another common mistake occurs where the death certificate lists the cause of death as “pending” or homicide”. If the cause of death is listed as “pending” or “homicide”, the petitioner must file a Suspicious Death Affidavit (Form MPC 475)[1] with the petition (M.G.L. 190B, Section 2-803).

3. Priority for Appointment: If the person requested to be appointed personal representative does not have the highest statutory priority to serve as personal representative pursuant to M.G.L. 190B, Section 3-203 or has equal statutory priority with others, then the petitioner must list the names of all individuals who have statutory priority to serve or who also have an equal statutory priority to serve. If there are renouncements or nominations accompanying the petition, the petitioner should indicate this by checking the appropriate box and filing the Renunciation and/or Nomination (Form MPC 455) of all such individuals. Instructions for completing the Renunciation and/or Nomination form are available (Form MPC 941).

Renunciation and/or Nomination form(s) shall be required and must be submitted with an informal petition if the petitioner is seeking to appoint a personal representative who does NOT have statutory priority for appointment. Only the court in a formal proceeding may appoint a person without statutory priority.

4. Formal vs. Informal Proceeding: Practitioners are attempting to go forward with informal proceedings where only formal proceedings are available. This most often occurs where there is a minor or otherwise incapacitated heir or devisee. If any devisee or heir is a minor or otherwise incapacitated, a formal proceeding is required unless there is an appointed conservator or guardian who is not one of the petitioners (M.G.L. 190B, Section 3-303(a)(8); Section 1-404 (as amended)). Absent an appointed conservator or guardian, informal proceedings are unavailable and formal proceedings are required.

In a formal proceeding, if there is no conflict of interest and no guardian or conservator has been appointed, a parent may represent a minor child. Likewise, if there is a substantially identical interest, a person who has assented or received notice may represent persons interested in an estate who are unborn or unascertained. In order to exert parental or virtual representation, a motion to waive a guardian ad litem (“GAL”) must be filed with the formal petition and allowed by the court. If the court finds that parental or virtual representation exists, a GAL does not need to be appointed.

5. Confusion About a Deceased Spouse: There is confusion about when to list a deceased spouse on a petition. If a spouse survived the decedent but died prior to filing the petition for probate, he or she must be named on the petition and his or her date of death must be provided. If a spouse predeceased the decedent, the predeceasing spouse should not be listed on the petition.

6. Trustees as Devisees: Petitions and voluntary administration filings frequently omit trustees in the list of devisees. If a trust is to receive any part of a decedent’s estate, the trustee of that trust must be listed on the petition as a devisee.

7. Overuse of Special Personal Representative: Special personal representatives often result in increased legal fees to the estate and create an accounting requirement. Courts will consider appointing a special personal representative only if a need for such is clearly articulated in the formal petition for appointment (Form MPC 160 or Form MPC 350). The convenience of an immediate appointment does not justify the appointment of a special personal representative.

8. Fiduciary Bond: A bond (Form MPC 801) must be filed with every petition for informal or formal probate that is seeking the appointment of a personal representative regardless of whether the will waives a bond and/or sureties. The value of personal and real property must be filled out on a bond even if the petitioner is submitting a bond without sureties.

9. File a Complete Package of Documents: The document most often omitted from a probate filing is the proposed Order or Decree. Fillable forms are provided via the Court Forms webpage. To avoid omitting documents, reference the Informal Checklist or Formal Checklists provided at the MUPC Hub before submitting any filing to the court.

10. Filing Fees: When an incorrect filing fee is submitted, no matter how de minimis the shortage or overage, the registry of probate must request additional funds or issue a refund. A new filing fee schedule went into effect only July 9, 2012 and was updated on October 17, 2012. Check filing fees online at the MUPC Hub prior to submitting a petition. If unsure about which fees apply, contact the registry before submitting your filing.

11. Last But Not Least, Proofread: Errors in petitions and other documents delay the probate process and may also increase costs and fees. The most common and easily correctable mistakes can be caught with proofreading. Before submitting a probate filing make sure to reference the MUPC Estate Administration Procedural Guide and review each document to confirm that it is completed properly, signatures are in the right spot and that all documents are dated.

The Probate and Family Court’s new website is full of helpful information, including the MUPC Estate Administration Procedural Guide, Uniform Fee Schedule, Informal and Formal Checklists, fillable forms for will and estate proceedings and fillable forms for trust proceedings.[2]

[1] It is anticipated that the title of the Suspicious Death Affidavit will soon be changed to “Cause of Death Affidavit”.

[2] If you have trouble opening forms in Google Chrome, try opening them in Explorer.