Taxation & Estate Planning

Details on Formal Proof of Will

Posted on January 14, 2009
I blogged here about the basics involved in a formal proof of Will. Just a couple of practice notes: -Formal Proof of Will usually means hauling the witnesses to the Will into court, to testify about the following (each of which relates to a specific technical requirement for validity of a Will): 1...

Obama and the Estate Tax

Posted on January 13, 2009
If you haven't read it, today's Wall Street Journal leads off with an article about Obama and the estate tax. Actually, it's about more than just what the President-elect plans to do regarding the tax -- there's also some interesting history about the rise and fall of the anti-estate tax forces, and the battle between the rich anti-estate tax folks and the REALLY rich anti-estate tax folks...

Fiduciaries and Power of Attorney

Posted on January 12, 2009
Last Friday I handled a real estate deal -- my client (an estate) sold the decedent's house. The administrator lives out of state and couldn't attend, so I (at the administrator's request) prepared a power of attorney in favor of myself. This is typically done when one/both sellers can't be at the closing, but note that there's an additional wrinkle when a fiduciary is involved...

ACTEC Commentaries on Model Rules of Professional Conduct

Posted on December 17, 2008
The Model Rules of Professional Conduct are a framework for attorney conduct in many states. The problem is that the Model Rules seem to have been written by and for litigation and commercial attorneys, and not by and for estate planning and probate attorneys...

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Peter Falk and Guardianship

Posted on December 16, 2008
This UPI article states that the daughter of actor Peter Falk -- famous for his roles in "Columbo" and "Wings of Desire" -- is seeking a conservatorship. (Conservatorship is just another word for guardianship.) Catherine Falk says that her father is suffering from Alzheimer's disease and dementia, and she is concerned that he "can easily be deceived into transferring away property...

Nudge, Shel Silverstein, Smart, and Negotiation

Posted on December 11, 2008
I'm currently reading Nudge: Improving Decisions About Health, Wealth, and Happiness, by the U of C professors Richard Thaler and Cass Sunstein. I'll probably post a review later, but I found one part (on page 77) particularly interesting. The authors are using a Shel Silverstein poem called "Smart" as the basis for an example, and they ask the reader to Google the poem and read it before continuing in the book...

Transfer of Will

Posted on December 09, 2008
Illinois law imposes a duty on anyone holding an original Will of a deceased person, to file that Will "with the clerk of the court of the proper county." That's usually easy to ascertain, but what if you file a Will in, say, Cook County, Illinois, but then discover that a probate is instead needed in Broward County, Florida? How do you get the Will -- which, upon filing, becomes the property of the Cook County clerk -- down to Florida? Well, in Cook County, you use this form, which is an application to transfer the Will to another jurisdiction, as well as an order...

Illinois Bar Journal Resources

Posted on December 08, 2008
If you are an Illinois estate planning or probate attorney, you may want to check out this month's Illinois Bar Journal. A few things it tackles: -how to use gifts to reduce Illinois estate taxes; -FDIC limits for accounts owned by a living trust; and -whether an adopted child can inherit from a biological parent...

May a non-resident act as Illinois executor?

Posted on December 05, 2008
Here's a question that pops up with some regularity: may someone who does not reside in Illinois act as the executor or administrator of an Illinois probate estate? The answer is yes, so long as the person is a resident of the U.S. (the U.S. residency requirement is found in Sections 6-13(a) and 9-1 of the Probate Act -- there are a few other basic requirements as well)...

CBGB Probate Dispute

Posted on December 04, 2008
This ain't no party, this ain't no disco this ain't no fooling around This ain't no mudd club, or C. B. G. B. I ain't got time for that now -Talking Heads, "Life During Wartime" The famed NYC club CBGB is in the news in a probate context, according to this New York Times article...

Renunciation of a Will, Part 2: Procedures

Posted on December 03, 2008
Yesterday I blogged about the basics of renunciation of a Will. A few procedural points: 1. Renunciation isn't automatic -- you have to petition the court for it, typically within 7 months after the spouse's Will was admitted to probate. The Probate Act says that "In order to renounce a will, the testator's surviving spouse must file in the court in which the will was admitted to probate a written instrument signed by the surviving spouse and declaring the renunciation...

Renunciation of a Will, Part 1: The Basics

Posted on December 02, 2008
Let's say you are married, and your husband dies. Even worse, in reviewing his papers, you find that you are left nothing (or a very small amount) in his Will. What are your rights? One of the most basic rights you have as surviving spouse is the right of renunciation, as set forth in Section 2-8 of the Illinois Probate Act...

Cars and Beneficiary Designations

Posted on December 01, 2008
My vote for the most annoying Illinois law is this one, which requires car dealerships to be closed on Sundays. (It should be called "The Lazy Car Salesman Act.") To be fair, Illinois legislators have finally done something sensible in the motor vehicle area...

Slayer Statutes, Attempted Murder, and Updating Your Will

Posted on November 27, 2008
This article discusses an interesting situation from Ohio: -17-year-old laces his parents' tea with cyanide -when that doesn't work, he shoots his mother three times with a .38, and shoots at (but misses) his father -both his mother and his father survive the attack -17-year-old is sent to juvenile detention for a year, then joins the Navy (his relationship with his parents is strained -- YA THINK??!!), and eventually "settles down" -many years later, parents die with mirror image Wills leaving everything to each other, with no other named beneficiaries* Does son (now 43) inherit anything from his parents (whose estates contain about $500,000 in property)? It would seem so, since he is their only heir, and they made no provisions for other beneficiaries...

Receipts and Distributions, part 2

Posted on November 27, 2008
On Tuesday I blogged about the receipt-distribution dance. One natural question might be, "why do I need to get receipts at all, if there's no court supervision of trust administration?" I think the answer can be boiled down to three letters: CYA. Just because there is no court supervision NOW doesn't mean that there won't be court supervision (or similar scrutiny) in the future, either because a beneficiary files suit or because of IRS action...

Receipts and Distributions, part 1

Posted on November 25, 2008
When I am advising a fiduciary (executor or trustee) about to make a distribution, I always list the pertinent steps in the following order: 1. Send out receipts for all beneficiaries to sign; 2. Once all signed receipts are in hand, send out checks...

Paul Newman's Will and Codicil

Posted on November 24, 2008
Copies are online here. A few things of note: -Paragraph 1.1 requests that the executor sell Mr. Newman's race cars and planes. When someone has a hobby like Mr. Newman did with racing cars, this is a great idea -- you let everyone know what you want to happen to your hobby-related property upon your death, so there's no confusion...

Utah, the LDS, and Probate Rights

Posted on November 11, 2008
Is everyone recovering from election fever? Pretty amazing, isn't it, that a Chicago-based attorney, formerly of Sidley & Austin, can become president? Maybe there's hope for me yet! In addition to the main event, there were a lot of other issues (and candidates) put before the public last Tuesday...

Claims and Secured Property in Probate

Posted on October 28, 2008
Previously (here), I have discussed the fact that not all claims against probate estates are created equally. Rather, under Illinois law, some claims have priority over others. For instance, attorney's fees, funeral expenses, and other administrative expenses get paid first (that is, they are first class claims)...

Slate article on Inheritance

Posted on October 27, 2008
This is a very nice article about the personal side of inheriting (or not inheriting) property, and the disputes that sometimes arise from the possibility of an inheritance.

Illiquidity and Probate

Posted on October 24, 2008
I don't really have any answers here, but let me tell what I see on the ground with respect to probate estates. Obviously, there's a problem, just like there is with the rest of the economy. The main problem is (no surprise) with real estate and liquidity...

Making Gifts in Tough Economic Times

Posted on October 23, 2008
Professor Beyer has a post (here) about why a bad economy is a boon for estate and gift planning. The idea can be a fairly simple one. You believe stock in company X is undervalued, so you either give your shares in company X to someone (let's say your daughter), or you give your daughter money to buy shares...

Other Presidential Candidates on the Estate Tax

Posted on October 21, 2008
I've posted a bit about the two major candidates for President, and their views on taxation. In the interest of providing a bit more information, I thought it might be helpful to see about the other four people who may appear on your ballot. Here's what their websites say on this issue: Bob Barr (Libertarian Party) Tax reform is desperately needed in the United States; but before we can reform the tax code, we must sharply reduce the tax burden on Americans...

How Much Information Should the Executor Give?

Posted on October 19, 2008
It's always interesting when I'm facing the same situation in two different cases but from opposite perspectives. That's where I find myself with respect to the following issue: beneficiary (child of X) has questions about the actions taken by executor (also child of X) before X's death, as an agent under X's power of attorney The question is, to account or not to account? By which I mean, does the executor take the time to prepare an accounting of his or her actions as agent for the beneficiary? In Illinois, such an accounting is not required -- in order to obtain it, the beneficiary would have to file a citation action...

New Office, and Offices Generally (Advice for Solos)

Posted on October 17, 2008
I just signed a lease on a second office, closer to home. It's located at 7225-27 West Madison Street in the hip, up-and-coming (though not because of me) suburb of Forest Park. Here is a map. I still have my first office, located a bit further west in Westchester (One Westbrook Corporate Center, Suite 300)...

More on McCain, Obama and the Estate Tax

Posted on October 16, 2008
This Wall Street Journal article has it. I REALLY like the idea, endorsed by both candidates(!), of making the estate tax exemption portable. Let me explain a bit about what that means: There is an estate tax exemption -- right now it's $2 million, but it's going up to $3...

A Rebuttal Re. Probate Investors

Posted on October 08, 2008
I recently received the e-mail from a reader, in response to some of my earlier posts about probate investors. I'm going to print it in its entirety, and then respond to a few points: Having read several of your posts, I find many of your comments to be insightful and interesting...

More on Taxes and President, VP Candidates

Posted on October 07, 2008
On the McCain/Palin (or is it Palin/McCain?) side, there's some analysis of income tax returns: Palin: Wall Street Journal article McCain: Huffington Post article On the Obama/Biden side, there's this open letter from prominent economists (including my current professor) who criticize Obama's tax plan...

Dividing the Estate and Just Buried

Posted on October 05, 2008
I don't know how I missed it, but Horton Foote's latest play is entitled "Dividing the Estate," and as the title suggests, it's about a fight over an inheritance. It's playing in New York City (details here). Also, a movie that's probably a little less classy: Just Buried, starring Jay Baruchel of the wonderful TV series "Undeclared...

Buckley Probate Mess

Posted on October 03, 2008
This is a sort of slimy story about William F. Buckley, his son Christopher (the author, about whom I've previously blogged), and Christopher's son Jonathan. Evidently Christopher cheated on his wife with a woman named Irina Woelfle, and she got pregnant...

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