BBA Trusts & Estates Section Program Recap – January 2012

In January 2012, the Boston Bar Association’s Trusts & Estates Section offered three educational programs on timely topics and developments in trusts and estates law. Below is a summary of the programs.

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UNWRITTEN RULES OF THE PROBATE COURT
Wednesday, January 11, 2012

Probate Court insiders and seasoned practitioners Hon. Beverly Boorstein; Hon. Edward F. Donnelly Jr. and Jennifer A. Maggiacomo of Middlesex Probate and Family Court; Daniel J. Gibson of Suffolk Probate and Family Court; John Harney of Norfolk Probate and Family Court; and Eugene A. Nigro of Nigro, Pettepit & Lucas provided practical tips and guidance regarding Probate Court practice.

Sponsoring Sections: Administration of Justice Section, Family Law Section, and Trusts & Estates Section

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WHY ESTATE PLANNING IS STILL CRITICAL
Friday, January 20, 2012

Speakers Robert J. Morrill, Esq. and Brian Liberis of Gilmore, Rees & Carlson, P.C. focused on why it remains critical for people to undertake estate planning, even with the recent significant increases in the estate tax exemptions.

Sponsoring Committee: Estate Planning Committee

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GLBTQ SENIORS: LONG TERM CARE & ESTATE PLANNING
Tuesday, January 24, 2012

There remains unequal treatment of GLBTQ clients under law. A same-sex Massachusetts marriage is not recognized by the federal government for the purposes of estate taxes, social security or Medicaid. Planning for this community must address this dual tract status.

In addition, the life experience of older GLBTQ persons often makes their planning more challenging. They are more likely to have less family support and require documents that address specific social realities. Panelists Gail E. Horowitz, Esq., Ellen K. Wade, Esq. and Michelle LaPointe, Esq. of Wade Horowitz LaPointe, LLC, addressed the unique estate planning issues of aging GLBTQ clientele.

Sponsoring Committee: Elder Law and Disability Planning Committee

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For a schedule of upcoming programs, visit the Boston Bar Association’s online calendar.

T&E Litigation Update – Rochalski v. Sklodowski (Correction)

Due to an error in the original post, this Litigation Update is being re-posted.

Author:
Mark E. Swirbalus, Esq., Day Pitney LLP

The T&E Litigation Update is a recurring column summarizing recent trusts and estates case law. If you have question about this update or about T&E litigation generally, please feel free to e-mail the author by clicking on his name above.

Rochalski v. Sklodowski

In Rochalski v. Sklodowski, Case No. 10-P-1750, 2012 Mass. App. Unpub. LEXIS 12 (Jan. 6, 2012), a decision issued pursuant to Rule 1:28, the Appeals Court affirmed the probate court’s judgment voiding certain transactions on grounds of lack of capacity and undue influence.

The decedent’s native language was Polish, with her knowledge of English being limited. She also suffered from mental illnesses, among them hoarding. Despite these limitations, she was able to accumulate a considerable estate, including a six-family residential building in Boston.

The decedent lived in an apartment on the property until 2002, when the building was condemned and put into receivership. The decedent contested the receivership and became embroiled in legal proceedings in an attempt to rehabilitate the property. She was assisted by an attorney, her guardian, and the defendant, who acted as the decedent’s interpreter. The attorney developed a plan for the property that required the decedent to deed one-half of her interest to a developer, who would rehabilitate the property and then allow the decedent to live in one of the apartments rent-free for the remainder of her life. The defendant intervened, however, persuading the decedent to deed the entire property to him for one dollar.

Thereafter, the defendant rehabilitated the property but rented the apartment meant for the decedent to a third party. The defendant also assumed control of the decedent’s finances, using a general power of attorney to withdraw money from the decedent’s accounts and cashing her Social Security checks, and isolated her from her family and guardian. Moreover, the defendant arranged for the decedent to execute a new will, which the defendant hand-wrote, naming himself as executor and the beneficiary of almost the entire estate.

The defendant admitted that he had emptied the decedent’s accounts, but argued that he did so at the decedent’s request. He also claimed that he sent $150,000 to a purported guard who had allegedly helped the decedent escape from a concentration camp in Siberia, even though the defendant conceded that he did not believe this had actually happened.

After trial, the probate court found the decedent had been incompetent and the victim of undue influence, voiding the deed, invalidating the will, and ordering the defendant to return funds to the decedent’s estate. The probate court also found that the defendant had violated his common law duties associated with a power of attorney, including by sending $150,000 to a person whose identity the defendant himself had questioned. The Appeals Court affirmed on all counts, and further ordered the defendant to pay the plaintiff administratrix’s costs and fees on appeal pursuant to Rule 25 of the Massachusetts Rules of Appellate Procedure.

The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org/ or call 617-742-0625.

Final Regulations re: IRC § 2036 and the Extent of Gross Estate Includibility of Grantor’s Retained Interest

Author:
Nikki Marie Oliveira, Esq., LL.M., Margolis & Bloom, LLP

On November 8, 2011, the IRS published T.D. 9555, final regulations regarding the includibility of property (regardless of whether held in trust) in the grantor’s gross estate under I.R.C. § 2036 where the grantor retained:

(1) the use of the property;
(2) the right to an annuity or unitrust;
(3) a graduated retained interest; or
(4) other payment from the property

in any event, for:

(A) life;
(B) any period not ascertainable without reference to the grantor’s death; or
(C) a period that does not in fact end before the grantor’s death.

The final regulations amend Treas. Reg. § 20.2036-1 and fine tune proposed regulations published in the Federal Register on April 30, 2009. The final regulations are generally effective as of November 8, 2011 and affect estates filing a federal estate tax return.

Grantor’s retained annuity or unitrust. The final regulations describe how to determine the portion of trust corpus that is includible in the grantor’s gross estate where the grantor retained an annuity or unitrust. The amount includible is the amount of trust corpus required to generate sufficient income to satisfy the retained interest.

Grantor’s retained annuity following another person’s current annuity interest. The final regulations describe how to determine the portion of trust corpus that is includible in the grantor’s gross estate where the grantor was to receive an annuity after the death of the current recipient of the annuity. The amount includible in the grantor’s gross estate is the greater of (1) the amount of trust corpus required to generate sufficient income to pay the annuity or unitrust payable to the grantor as of the date of death, or (2) amount of corpus required to produce sufficient income to satisfy the annuity or other payment the grantor would have been entitled to receive if the grantor had survived the current recipient, reduced by the present value of the current recipient’s interest. The maximum includible value is the fair market value of the trust corpus at the grantor’s death.

Grantor’s graduated retained interest. The final regulations define a graduated retained interest as the grantor’s reservation of a right to receive an annuity, unitrust or other payment that increases over a period of time, and provide an example of how to calculate the extent to which trust corpus is includible in the grantor’s gross estate where the grantor retained a graduated retained interest.

Grantor and child share equal income or annuity interests. The final regulations clarify the extent to which the value of trust corpus is includible in the grantor’s gross estate where income is payable to the grantor and his child in equal shares while they are both living, and then to the survivor of them. In summary, if the grantor dies first, the present value of the surviving child’s life estate reduces only the half of the trust corpus from which it is payable. One half of the value of the trust corpus is includible in the grantor’s estate because of his right to receive one half of the trust income for life. The value of the remaining one half of trust corpus less the present value of the child’s outstanding life estate in the child’s half is also includible in the grantor’s estate because the grantor had the right to receive all the trust income if he had survived the child. Alternatively, if the grantor survived the child, the entire trust corpus would be includible in the grantor’s gross estate.

The final regulations also provide an example calculating the portion of the trust corpus includible in the grantor’s estate where the grantor and his child held annuity interests rather than trust income.

No double inclusion under §§ 2033 and 2036. The final regulations resolve the issue of whether I.R.C. §§ 2033 and 2036 might cause an asset to be subject to “double inclusion” in a particular circumstance. Specifically, if a grantor retains an interest for a term of years, dies before the term expires, and payments become payable to his estate for the balance of the term, those amounts payable to the estate after the grantor’s death are not includible in the grantor’s gross estate under § 2033 because they are already reflected in the value of the trust corpus and are includible under § 2036. Conversely, if the payments are payable to the grantor prior to death, but not actually paid until after death, those amounts are includible under § 2033.

BBA Trusts & Estates Section Program Recap – Fall 2011

In fall 2011, the Boston Bar Association’s Trusts & Estates Section offered twelve educational programs on timely topics and developments in trusts and estates law. Below is a summary of the programs that took place from September to December 2011. Links to written materials used in the programs are included where available.

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MASSACHUSETTS BASIS PROBLEM FOR PROPERTY ACQUIRED FROM DECEDENTS
September 16, 2011

Federal tax legislation, as it interacts with Massachusetts tax law, seems to have “accidentally” repealed the Massachusetts step-up basis of death. Speaker Kenneth P. Brier of Brier & Guerden LLP, discussed the origins of this problem, possible interpretive solutions, and legal developments.

Program materials can be found here.

Sponsoring Committee: Estate Planning Committee

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ESTATE, GIFT AND GST TAX BASICS FOR THE NEW ESTATE PLANNER
October 5, 2011

This session provided a basic overview of the estate, gift and GST taxes. Speaker Geoffrey M. Mason of Ropes & Gray, LLP explained the scope of the taxes and how they drive certain aspects of the estate planning process.

Sponsoring Section/Committees: Practice Fundamentals Committee, New Lawyers Section

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MANAGING RISK: BEHIND THE SCENES AT AN INSTITUTIONAL FIDUCIARY
October 18, 2011

A panel of trust officers and counsel from large institutional fiduciaries, consisting of Arthur W. Young III and Anthony L. Galvagna from the legal department of Bank of America Corporation, and Jennifer F. Galvagna and Norman Otto from U.S. Trust, Bank of America Private Wealth Management, gave a behind-the-scenes look into their best practices and procedures for avoiding risk in the administration of trusts.

Sponsoring Committee: Fiduciary Litigation Committee

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PREPARING FOR 2012: UPDATING FORMS FOR THE MUPC
October 21, 2011

The MUPC enacts sweeping changes to the construction, interpretation and administration of wills and trusts in Massachusetts. Speakers Ruth Mattson of Bowditch & Dewey, LLP and Kerry L. Spindler of Goulston & Storrs, PC discussed changes that can and should be made to Massachusetts estate planning forms in anticipation of the MUPC effective date.

Program materials can be found here.

Sponsoring Committee: Estate Planning Committee

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BASIC ESTATE PLAN DOCUMENTS
November 2, 2011

This session provided an overview of documents found in many basic estate plans. Speaker Matthew R. Hillery of Edwards Wildman Palmer LLP discussed the general operation of wills, revocable trusts, durable powers of attorney and health care proxies. He also discussed important provisions found in these documents, with a special focus on marital deduction formulas.

Program materials can be found here.

Sponsoring Committee: Practice Fundamentals Committee

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THE NEW MASSACHUSETTS UNIFORM PROBATE CODE
November 4, 2011

New procedures for handling probate matters will come into effect in 2012 under the Massachusetts Uniform Probate Code (“MUPC”). The Massachusetts Probate Court has extensively prepared for the implementation of these new procedures and those handling probate matters in the Courts must now prepare themselves for the upcoming changes. This CLE course was designed as a practical guide to the application of the new MUPC to handle probate matters. The panel of speakers consisted of Mark A. Leahy of Whittum & Leahy, Middlesex Probate and Family Court Assistant Judicial Case Manager Jennifer M. Rivera Ulwick, Thomas P. Jalkut of Nutter McClennen & Fish LLP, Kerry L. Spindler of Goulston & Storrs, PC, Worcester Probate & Family Court Family Law Facilitator & Deputy Assistant Register Evelyn Patsos, and Jennifer Laucirica of Goodwin Procter LLP. The program introduced the new MUPC procedures, analyzed those procedures available to handle estates more efficiently, reviewed new forms, and provided guidance for handling matters pending on the MUPC effective date.

If you are interested in a copy of the CLE program materials, please contact the Boston Bar Association.

Sponsoring Committee: CLE Programming Committee

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AVOIDING PROBLEMS WHEN DRAFTING AND USING DURABLE POWERS OF ATTORNEY
November 15, 2011

Durable Powers of Attorney are a common part of most estate plans. Unfortunately, these powerful documents are often misused. This program focused on solving problems when drafting Durable Powers of Attorney and advising clients on their use. Speakers Steven M. Cohen of Cohen & Oalican, LLP, Harriet Holzman Onello, and Matthew Marcus of Colucci Colucci Marcus & Flavin, PC discussed how to prevent financial abuse, language necessary to making Durable Powers of Attorney as useful as possible, and how to respond to problems arising from misuse of Durable Power of Attorney documents.

Program materials can be found here.

Sponsoring Committee: Elder Law and Disability Planning Committee

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ISSUES FACING TRUSTEES UNDER THE MUPC AND MUTC
November 18, 2011

This program focused on Article VII, the trust administration provisions of the MUPC, and the MUTC. Speaker Jennifer Locke of Goodwin Procter LLP discussed questions and issues facing trustees raised by various provisions of the statutes, including:

  • Approval or allowance of accounts: post- and pre-2012 irrevocable trusts, options, notice requirements, limitations on claims against trustees
  • Virtual representation: who represents whom and when
  • Declaratory judgments, petitions for instructions, appointment and removal of trustees
  • Trustee compensation, fees paid to attorneys and agents
  • Compromise agreements
  • Duty to inform and account to beneficiaries
  • Appropriate place of administration of the trust

Program materials can be found here.

Sponsoring Committee: Estate Planning Committee

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CARING FOR SENIORS – WHERE CAN WE TURN FOR CLIENTS, PARENTS AND OURSELVES?
December 6, 2011

Despite the well documented increase in the elderly population in the United States, most families are totally unprepared to deal with the issues that arise in caring for an elderly family member. This program covered the range of services available in the long term care system and presented strategies for planning ahead in order to avoid an “elder care crisis”. Speakers Helen K. Kass and Emily Saltz of Elder Resources discussed how services are financed, including differences between Medicare, Medicaid and long term care insurance. Participants learned useful strategies for communicating their concerns, whether for a family member or a client, and the importance of a team approach in dealing with elder care issues.

Sponsoring Section/Committees: Senior Lawyers Section, Elder Law and Disability Planning Committee

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TRUSTS & ESTATES SECTION MID-YEAR REVIEW
Friday, December 9, 2011

The Trusts & Estates Section Mid-Year Review covered recent federal and state case law, legislation and tax law matters. This year’s Mid-Year review touched on federal tax cases, Massachusetts case law, and legislative updates. Speakers included Kristin T. Abati of Choate Hall & Stewart LLP, Kelly A. Aylward of Bove & Langa, PC, Brad Bedingfield of Wilmer Cutler Pickering Hale and Dorr LLP, Alison Irving Glover of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC, Alison E. Lothes of Sullivan & Worcester LLP, Stacy K. Mullaney of Fiduciary Trust Company, Boston, and Susan L. Repetti of Nutter McClennen & Fish LLP.

Program materials can be found here.

Sponsoring Section: Trusts & Estates Section

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SPOTTING ADVANCED PLANNING ISSUES AND OPPORTUNITIES
Wednesday, December 7, 2011

Panelists Vincent E. Bonzzoli of Family Estate Planning Law Group and Jennifer N. Collins of Nixon Peabody LLP, and moderator Geoffrey M. Mason of Ropes & Gray LLP, focused on how to initiate discussions with clients and spot advanced planning issues and opportunities.

Sponsoring Committees: Practice Fundamentals Committee

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SURVEY OF RECENT TRUST AND ESTATE CASES FROM OUTSIDE MASSACHUSETTS
Tuesday, December 20, 2011

This program presented a survey of trust and estate litigation cases from jurisdictions outside of Massachusetts. Speakers Joseph L. Bierwirth, Jr. and Shana Maldonado of Hemenway & Barnes LLP discussed enforceability of arbitration clauses in trust instruments, suits arising out of bad trust investments, attorney liability for trustee breaches and prudent investment during the economic downturn. They looked at specific cases addressing these issues and considered the implications in Massachusetts.

Program materials can be found here.

Sponsoring Committee: Fiduciary Litigation Committee

Final Directive Released Regarding Massachusetts Cost Basis for Assets Passing At Death in 2010 and Thereafter

Author:
Form 8939 Not Required to be Filed in Order to Apply 2010 Cost Basis Allocation for Massachusetts Purposes

As we reported here, on October 11, 2011, the Massachusetts Department of Revenue issued, for practitioner comment, a two-part draft Directive addressing the extent to which assets passing from Massachusetts decedents in 2010 and thereafter may receive a step-up in cost basis for purposes of Massachusetts capital gains tax. In draft Directive 2, the DOR interpreted the law as providing that the Massachusetts cost basis of property acquired from decedents who die in 2011 or thereafter is full “stepped-up” basis. In draft Directive 1, however, instead of providing for a full step-up in cost basis for Massachusetts purposes, the DOR interpreted the law as providing for the “modified carryover” basis regime applicable for federal tax purposes under IRC § 1022 to estates of 2010 decedents whose executors elect out of application of estate tax.

As the deadline for filing the federal Form 8939 to allocate cost basis under §1022 for federal purposes (January 17, 2012) has approached, a number of practitioners have expressed concern regarding whether availability of the § 1022 cost basis allocation for Massachusetts purposes requires the Personal Representative to prepare a Form 8939, especially where the Personal Representative is not opting out of application of federal estate tax for 2010, and therefore has no federal Form 8939 requirement.

On January 12, 2012, the Massachusetts Department of Revenue issued the final Directive 11-7. In substance, the final Directive is consistent with the draft Directive – full step-up in cost basis for assets passing upon death in 2011 and thereafter, and IRC § 1022 modified carryover basis for assets passing upon death in 2010. The Final Directive confirms that this modified carryover basis regime applies to assets passing from the estates of 2010 decedents regardless of what election is made federally.

New Massachusetts Requirement for Personal Representatives to Furnish Certain Basis Information to Beneficiaries

Directive 11-7 further confirms that there is no requirement to file anything at all with the Commonwealth, or otherwise to prepare a Form 8939, in order to allocate cost basis for Massachusetts purposes. However, the Personal Representative is required to send to all recipients of property from the estate of a 2010 decedent the written statement required under IRC § 6018(e). IRC § 6018(e) requires the Personal Representative to deliver this written statement within 30 days of the deadline for filing Form 8939 (or by February 16, 2012). The Directive does not address whether this same 30-day deadline applies if the Personal Representative has no federal Form 8939 filing requirement. However, conversations with the Department of Revenue have indicated that this 30-day delivery requirement does apply for Massachusetts purposes regardless of whether the Personal Representative has a federal Form 8939 filing requirement.

Proposed Remedial Legislation

As discussed here, the Boston Bar Association has promulgated and continues to support Bill # H2559 (referenced in Footnote 2 of the final Directive), which would alleviate the need for the aforementioned Directive, would provide certainty regarding cost basis of assets received from a decedent after 2009 for Massachusetts purposes, and would conform Massachusetts practice in this regard with the federal policy, and with the historic Massachusetts practice, of subjecting assets passing at death to either estate tax or capital gains tax, but not both.

H2559 is currently before the Joint Committee on Revenue. Please consider contacting your representatives and asking them (1) to urge the members of the Joint Committee to report H2559 favorably out of the committee and (2) to vote for it. The phone numbers and email addresses of the members of the Joint Committee on Revenue may be found here.

To identify your representatives, and for contact information, please click here.

A template letter for your consideration may be found here.

Thank you for your support.



T&E Litigation Update – Purcell v. Landers

Author:
Mark E. Swirbalus, Esq., Day Pitney LLP

The T&E Litigation Update is a recurring column summarizing recent trusts and estates case law. If you have question about this update or about T&E litigation generally, please feel free to e-mail the author by clicking on his name above.

Purcell v. Landers

In Purcell v. Landers, Case No. 10-P-1757, 2011 Mass. App. Unpub. LEXIS 1251 (Dec. 6, 2011), a decision issued pursuant to Rule 1:28, the Appeals Court affirmed in part and reversed and remanded in part the probate court’s disposition of a will contest.

The decedent had one adopted daughter, the plaintiff Lisa Purcell, and they were described as “estranged” from each other. The decedent was afraid of the plaintiff, who had admitted to sufficient facts and a guilty finding of threatening to commit a crime against the decedent, apparently for threatening to burn down his house with him in it, and whom the decedent said had taken $26,000 from him during his lifetime.

In his will, the decedent left only $1 to the plaintiff, leaving the rest to his friend, the defendant Richard Landers, whom the decedent also named as executor. The defendant was described as the decedent’s “one true friend” for many years both before and after the death of the decedent’s wife in 1984.

The plaintiff objected to the allowance of the will and to the defendant’s appointment as executor, in part because it was the defendant who had introduced the decedent to his estate planning lawyer and drove the decedent to the lawyer’s office for the preparation of the will. After a trial, the probate court struck the plaintiff’s objections and allowed the will for probate, finding that the defendant, rather than the plaintiff, had become the natural object of the decedent’s bounty.

The Appeals Court affirmed the portion of the probate court’s decision striking the plaintiff’s objections, but reversed the allowance of the will for probate, because the defendant, as the proponent of the will, had not met his burden of proving that the will was executed in accordance with the law. Specifically, the defendant had not called the attesting witnesses to testify at trial. “[T]he judge erred in not enforcing the requirement of testimony by attesting witnesses. Instead, he inappropriately shifted the burden of producing the witnesses to the plaintiff. As a result, despite the judge’s diligence in preparing thoughtful findings, the defendant failed to satisfy his burden to prove proper execution of the decedent’s will as required under G.L. c. 191, § 1.”

The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org/ or call 617-742-0625.

IRS Rev Ruling 2011-28: Grantor’s Power to Acquire Insurance Policy by Substituting Assets Does Not Cause Estate Tax Inclusion Under IRC § 2042

Author:
Caleb Sainsbury, Esq., Pabian & Russell, LLC

The IRS issued Revenue Ruling 2011-28 on December 5, 2011 regarding the includability of a nonfiduciary power held by the grantor to acquire an insurance policy on the grantor’s life from an irrevocable trust by substituting assets of equivalent value. This ruling is important because it resolves the issue of whether the grantor’s retention of a power, exercisable in a non-fiduciary capacity, to acquire an insurance policy on his life owned by an irrevocable trust by substituting assets of equivalent value causes the insurance policy to be includible in the grantor’s gross estate under § 2042. The IRS ruled for the taxpayer and concluded that such a power would not by itself cause the value of the insurance policy to be includible in the grantor’s gross estate under §2042. In reaching this conclusion, the Service noted several important facts working in the taxpayer’s favor:

  • The trust instrument expressly prohibited the grantor from serving as trustee.
  • The grantor’s power to substitute assets of equivalent value was held in a nonfiduciary capacity.
  • Under the terms of the trust in this particular case, the assets transferred to the trust must be equivalent in value to the insurance policies that the grantor will receive.
  • The trustee had a fiduciary obligation to ensure that substituted assets were of equivalent value ensuring that the trustee cannot act in a manner that will deplete trust assets or increase the grantor’s net worth.
  • Because the trustee had the fiduciary duty to treat the beneficiaries impartially and the trustee had the power to re-invest assets, a substitution of assets would not work to shift assets among the beneficiaries.

This Ruling is taxpayer friendly and provides useful guidance when advising clients on the types of powers a grantor may retain. Practitioners should consult the Ruling itself for the detailed legal analysis the IRS conducted in reaching this result.

The Boston Bar Association Trusts & Estates Section Blog provides information as a service to its users and BBA members. Neither the Trusts & Estates Section nor the Boston Bar Association are a law firm and do not represent clients in any way. Although the information on this site is about legal issues and informational services it is not legal advice. Use of this blog does not in any way create a lawyer-client relationship. If you need a lawyer, the Boston Bar Association Lawyer Referral Service can refer you to a qualified attorney. http://www.bostonbarlawyer.org or call 617-742-0625.

Massachusetts Uniform Probate Code Delayed 90 Days

The Boston Bar Association recently published the following release:

On December 30, 2011, Governor Patrick signed into law a bill that extends the effective date of the Massachusetts Uniform Probate Code, G.L. c. 190B (MUPC ) — as it applies to estates and trusts — to March 31, 2012. The MUPC was set to take effect on January 2, 2012. The Boston Bar Association has been advocating for the implementation of the MUPC for more than twenty years and will continue to work with the Legislature and the Probate and Family Court to ensure that these important provisions become law.

“This landmark piece of legislation improves what was an unacceptable situation concerning the appointment and conduct of guardians,” said BBA President Lisa C. Goodheart. “The MUPC will also simplify the probate process for families and our courts while expediting the process for administering estates.” The MUPC facilitates the appointments of executors and also provides options for choosing informal or formal procedures to open and close probate matters.

The MUPC became effective for guardianship on July 1, 2009. Still under consideration by the Legislature is a bill establishing a uniform trust code, containing technical corrections to the MUPC, and granting the Probate and Family Court statutory authority to collect fees under the MUPC.

The Probate and Family Court’s statement on the delay, including amended Standing Order 5-11 and revised forms and instructions, can be found here.

Effective Date of Probate Code Overhaul Likely to be Delayed

The Boston Bar Association and Massachusetts Bar Association released the following announcement earlier today to members:

Today the House passed a bill extending the effective date of the Massachusetts Uniform Probate Code (MUPC) to March 31, 2012. The extension bill awaits action by the Senate. The MUPC was set to go in effect on Jan. 2, 2012.

Still under consideration by the Legislature is a bill establishing a uniform trust code, containing certain technical corrections to the MUPC, and granting the Probate and Family Court statutory authority to collect fees under the MUPC.

Both organizations look forward to continued work with the Legislature and the Court to ensure that these important provisions become law.

Probate Court Begins to Release MUPC Forms

The Massachusetts Probate and Family Court has begun to publish the new MUPC probate forms on a new page on its website here. At this time, more than thirty forms have been released, including forms for opening an informal probate, opening a formal probate, closing probate, and creating an inventory and accounts. The Court will publish additional MUPC forms as they become available and plans to remove current probate forms (those effective until January 2, 2012) from its website in January 2012.

The Court has also begun to publish certain instructional materials that have been used at recent trainings on its website here.