Summary of ACTEC Survey on Revocable Trusts - Updated Through ...

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  • SUMMARY OF

    ACTEC SURVEY ON REVOCABLE TRUSTS

    Ira Mark Bloom1

    The Revocable Trusts Subcommittee of the States Laws Committee of the American College of Trust and Estate Counsel (ACTEC) prepared a comprehensive survey on revocable trusts (Survey). The Survey was sent to an ACTEC fellow from each state,

    Chair, Revocable Trusts Subcommittee, ACTEC State Laws Committee

    Background

    2

    Responses, which were received for each state, are complied in a massive Excel file. If you would like the file, please email me at

    with a view towards determining revocable trust usage on a comparative basis. The Survey included the following Instructions:

    The survey includes questions on substantive state law and questions that are practice-related. For substantive law questions please cite relevant statutory or case law authority.

    For practice-related questions, please answer based on the common practice within your state. Depending on your state, there may not be a common practice on a particular practice-related matter, e.g., local practice considerations may dictate different approaches. If there is not a common practice on a particular matter, please explain the different practices and the reasons for the differences. In some instances, you may find it helpful to confer with an ACTEC fellow in a different part of your state.

    @albanylaw.edu. Caveat: The file is not intended to be printed in its entirety as it will print out to over 1,500 pages.

    The following summarizes the Survey results. Many questions will not have 51 responses

    because a fellow or fellows chose not to respond to a particular question. For other questions, a fellow was unsure of the answer; indeed there may not be any authority in the particular state.

    Hopefully the Survey will facilitate planning and drafting and encourage appropriate

    legislation.

    1 Justice David Josiah Brewer Distinguished Professor of Law, Albany Law School. 2 For purposes of the Survey, the District of Columbia was treated as a state.

    DISCLAIMER ON USE: The reader is cautioned to confirm the information provided in this Survey by independent research and analysis

    to ensure that it is accurate, complete, and current. The publication and dissemination of this Survey by any means by the American College of Trust and Estate Counsel (ACTEC) does not constitute the rendering of legal, accounting,

    or other professional advice. ACTEC disclaims any liability with respect to use of this Survey.

    mailto:ibloo@albanylaw.edu

  • Uniform Statutory Adoptions Has your state enacted the UTC? Yes-20; No-31. Has your state enacted Article II of the UPC?3 Yes-24; No-27. 1. USE OF REVOCABLE TRUST AS PRIMARY DEVICE TO TRANSMIT

    PROPERTY AT DEATH

    Is there a consensus in your state that a revocable trust (and not a will) should be used as the primary device to transmit property at death?

    YES-16 states, including CA, DE, FL, MA and OH; also AZ, HI and MI which have enacted UPC informal administration.

    If yes, please explain the general reasons for its primacy, i.e., the specific

    benefits of probate avoidance, including relative cost savings over wills, court supervision concerns, probate complexity, privacy. (Note that other reasons for using revocable trusts are surveyed below and that additional questions about privacy are also surveyed below.)

    Problems with probate process

    * Lack of immediate access to and control over assets. * Time delays (WY: 1 year if uncomplicated) * Notice and filing requirements, filing fees * Statutory fees for executors and lawyers * Other cost savings * Court supervision concerns-opening and closing, inventory; avoid

    dealing with court personnel-can be arbitrary and tyrannical. * Privacy issues. See Part 4. OH, OK and WA: online access to wills possible in some counties. * If testamentary trust, ongoing administration, frequent accountings, fees.

    See Part 2.

    3 Article II (Intestacy, Wills and Donative Transfers) is quite comprehensive. A YES response does not necessarily mean that all of Article II has been enacted.

    DISCLAIMER ON USE: The reader is cautioned to confirm the information provided in this Survey by independent research and analysis

    to ensure that it is accurate, complete, and current. The publication and dissemination of this Survey by any means by the American College of Trust and Estate Counsel (ACTEC) does not constitute the rendering of legal, accounting,

    or other professional advice. ACTEC disclaims any liability with respect to use of this Survey.

  • AZ: Probate avoidance is probably the number 1 reason, but the relative cost savings if an individual fiduciary is appointed are not large. Currently, clients generally expect that the trust will be used except in smaller estates (under $100,000). CA: Avoidance of probate and attendant filing fee based on size of estate, attendant statutory executor's commission and attorney's fee, mandatory court supervision (minimum of formal opening and closing of estate, court-filed inventory), public record. DE: The primary reason is probate avoidance. There is a 1.25% to 1.75% fee imposed on the net probate estate. FL: Although I am not certain that there is a true consensus in Florida, there is a significant preference for the use of revocable trusts for most estate planning. The reason for this is that there are a number of practitioners (as well as others who are not lawyers!) who have made a cottage industry of putting on estate planning seminars at which they are selling trust packages. Thus, the "folklore around the shuffleboard court" has become that you must have a revocable trust in order to have an effective estate plan. MA: Court supervision concerns, cost savings, privacy. MO: Most estate planners use a revocable trust as the primary document in creating an estate plan. There would have to be a good reason not to do so. Locally, the probate court for many years has had a reputation for being slow and erratic. However the trust practice is wide spread across the state. An alternative to solemn form, or supervised, probate was enacted in 1981, known as independent administration, sections 473.780 et.seq. We would estimate of the probate estates opened 90% are opened as Independent estates. While the courts are involved, supervision is limited. Mo still does have a statutory fee schedule for compensation of Personal Representatives and Attorneys, and Attorneys must be utilized. Trust mills, both run by lawyers, and non-lawyers, were very prevalent in the recent past and led to a general opinion among the public that an attorney was not doing a proper job without use of revocable trusts. With that background, the main reasons for use of revocable trusts as main estate planning vehicles are:

    DISCLAIMER ON USE: The reader is cautioned to confirm the information provided in this Survey by independent research and analysis

    to ensure that it is accurate, complete, and current. The publication and dissemination of this Survey by any means by the American College of Trust and Estate Counsel (ACTEC) does not constitute the rendering of legal, accounting,

    or other professional advice. ACTEC disclaims any liability with respect to use of this Survey.

  • Probate Avoidance, Privacy, Reduction of fees, Planning for new spouse (avoidance of elective share, see below), and Incapacity planning (see below). Caveat: Avoiding probate completely is a fools errand-will inevitably be assets owned at death.

    NY: This may be the primary reason for their use.

    Other reasons for RT preference

    * Agent can have authority to amend RT but not will. * Elective share avoidance. See Part 3. * Disability, including guardianship avoidance. See Part 4. Management if incapacity and RT much preferred over durable

    powers as banks and brokerages question authority/concern about reliability of agent (and disability or death of agent). Some use of standby RTs.

    CA: A common purpose of the revocable trust. HI: Prior to enactment of the Uniform Probate Code in 1997, one of the primary reasons for using revocable trusts was to avoid the time delays of probate. Now that informal probate is available in Hawaii, this reason no longer applies. These days, the two main reasons for using trusts instead of wills are privacy and disability planning concerns. Avoiding the necessity to file a conservatorship is an important consideration. Using durable powers of attorney does not necessarily handle the problem because many banks or brokers want their own form or do not want to take a power that is a few years old, even though the statutes provide that they are protected if they accept them. It is also slightly more expensive to go through the probate process. The filing fee to open a probate is $175. If the Trustee wishes to file a final account in court, that would be $85. NM: Providing for a current or relatively-expectable disability is one of the reasons a trust might be used in preference to a will. I cannot recall seeing a revocable trust recently that does not contain provisions for management in the event of the disability of the settler.

    DISCLAIMER ON USE: The reader is cautioned to confirm the information provided in this Survey by independent research and analysis

    to ensure that it is accurate, complete, and current. The publication and dissemination of this Survey by any means by the American College of Trust and Estate Counsel (ACTEC) does not constitute the rendering of legal, accounting,

    or other professional advice. ACTEC disclaims any liability with respect to use of this Survey.

  • WY: This is a common use, with a self-defined method of determining disability, which typically involves less time and effort than the establishment of a conservatorship

    * Asset management, for example, for travel, elderly. See Part 4. VA: It is common for this to be a primary purpose of a revocable trust. If there is no consensus in your state that a revocable trust should be used as

    the primary device to transmit property at death, is there a consensus in your state that a will should be used as the primary device to transmit property at death?

    YES in only 3 states: LA, NJ and SC. Even if no consensus probate may be very simple as in GA, TX and WA along with UPC states with informal administration. PA ACTEC fellow reports that that probate takes 5-10 minutes although do have to file inventory. If yes, please explain the general reasons why the will is the primary device.

    SOL for will challenges is shorter; less expensive. If there is no consensus in your state that either a revocable trust or a will

    should be used as the primary device to transmit property at death, please explain why there is no consensus and under what circumstances a revocable trust is preferred over a will.

    *Virtual consensus that RT should be used for out-of-state real property. * Problems with RTs. Deed tax for rev trusts but not wills. Title insurance and homeowners insurance issues. Problem with funding-cost and inconvenience of retitling. Incomplete funding and still need probate. Two transfers with RT: on creation and then on death but only one under wills. MS: Whether a revocable trust or a will is preferred depends on the facts

    and circumstances relating to the matter upon which the estate planner is working. There may be certain facts and circumstances that produce a preference for a will as compared to a revocable trust or vice versa.

    DISCLAIMER ON USE: The reader is cautioned to confirm the information provided in this Survey by independent research and analysis

    to ensure that it is accurate, complete, and current. The publication and dissemination of this Survey by any means by the American College of Trust and Estate Counsel (ACTEC) does not constitute the rendering of legal, accounting,

    or other professional advice. ACTEC disclaims any liability with respect to use of this Survey.

  • 2. REVOCABLE TRUSTS COMPARED TO TESTAMENTARY TRUSTS

    Do revocable trusts have advantages in your state over testamentary trusts apart from avoiding the need to probate a will? Privacy for RTS.

    TX: There are no differences in Texas between the administration of a revocable trust and those of a testamentary trust. Wide differences re court supervision over testamentary trusts and RTs. *In some states, no mandatory supervision over RTs but required for wills, including NV and OH. Comprehensive Nevada response follows:

    There is one particular advantage in Nevada for a revocable trust over a testamentary trust other than the need to probate the will for the testamentary trust. The advantage of the revocable trust is that the court does not have automatic and continuing jurisdiction over the revocable trust as is the case with a testamentary trust. In regard to a revocable trust, the court is only gets jurisdiction over the trust if some interested party seeks to have court obtain jurisdiction. NRS 153.020 memorializes the concept of automatic and continuing jurisdiction over a testamentary trust.

    NY: Court approval for Test. Trustee to resign or appoint new trustee; court approval to change trust situs. *In some states, no mandatory supervision for either, including CA, CO and IA.

    Differences in accountings CA: Mandatory accountings for both. CT: TTs are worse for income tax. MA and OH: probate acct for TTs. Does your state prohibit a lawyer who drafts a revocable trust from serving

    as serve as a trustee of a revocable trust? No-51.

    Does your state prohibit a lawyer who drafts a will from serving as testamentary trustee? No-51.

    From serving as executor? No-51.

    DISCLAIMER ON USE: The reader is cautioned to confirm the information provided in this Survey by independent research and analysis

    to ensure that it is accurate, complete, and current. The publication and dissemination of this Survey by any means by the American College of Trust and Estate Counsel (ACTEC) does not constitute the rendering of legal, accounting,

    or other professional advice. ACTEC disclaims any liability with respect to use of this Survey.

  • 3. USE OF REVOCABLE TRUSTS TO AVOID CREDITORS= AND FAMILY RIGHTS AT DEATH OF SETTLOR

    Creditors= Rights

    Can creditors of the settlor reach property held in a revocable trust after the

    settlor dies? Yes-37, including UPC 6-102 and UTC 505 (20 states) but only after probate exhausted. No-2. ND and RI CREATE TRUSTS THERE??? Not clear/never been decided-10. When must creditors= claims against revocable trusts be filed? Wide variation: IL: Not entirely clear. As to claims that are payable from the revocable trust because the trust provides for payment of taxes and expenses, it makes sense that the claims period would be the same as set forth below for estates. I am not aware, however, of any case on point, and there is no statutory authority one way or the other. MD: There is no law on point,...

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