ASSET PROTECTION PLANNING
1. Self Settled Trusts
Drafting for Domestic Asset Protection Trusts [Drafting suggestions]
“Domestic Asset Protection Trusts: Key Issues and Answers” by David G. Shaftel.
ACTEC Journal, Summer 2004
LINK
2. Offshore Trusts
Asset Protection Overview (Techniques in the United States and Offshore)
Forms for Dispositive Provisions, Incentive Planning and Special Needs. By Alan J. Claypool
ACTEC Journal, Spring 1999
LINK
3. Trusts & State Law Protection
Articles on Asset Protection
By Gideon Rothschild — Articles dealing with asset protection, offshore trusts, life insurance and annuity exemptions from creditors and retirement plans and annuity exemptions from creditors.
LINK
Asset Protection & Estate Planning Why Not Have Both?
By Barry Nelson. Presented at the Power of Asset Protection Annual Wealth Protection Conference in Miami, FL on May 10, 2002.
LINK
Asset Protection and Estate Planning, Why Not Have Both? — Updated By Barry Nelson.
As updated and presented at The Annual Wealth Protection Conference for the Florida Bar Tax Section at Miami, Florida on May 9, 2003.
LINK
Asset Protection for the Common Man
By James W. Narron. From the Southeast Regional Meeting 2005.
LINK
Asset Protection Overview
“Asset Protection Overview (Techniques in the United States and Offshore)” by Allan J. Claypool.
LINK
Asset Protection Trusts
“Domestic Asset Protection Trusts: Key Issues and Answers” by David G. Shaftel. (ACTEC Journal, Summer 2004)
LINK
Domestic Asset Protection Trusts
Alaska’s Five-Year Experience with Self-Selected Discretionary Spendthrift Trusts. By David G. Shaftel.
LINK
Domestic Asset Protection Trusts — The Allvest, Inc. Case
The Alaska Allvest, Inc. case and the validity of self-settled domestic asset protection trusts, by David G. Shaftel.
LINK
Florida Homestead Exemption — Transfer to Revocable Trust
“Is Bosonetto Dead — Or is it on Life Support” by Charles Ian Nash.
LINK
See, In re: Alexander – U.S. Bankruptcy Court, Middle District Fl – Order Overruling Trustee’s Objection to Debtor’s Claim of Homestead Exemption.
LINK
Florida’s Homestead Exemption Does Have Some Limits
By Barry Nelson, as published in the Florida Bar Journal, Jan. & Feb. 2003.
LINK
Fraudulent Transfers
“WHEN DOES A CLAIM ARISE UNDER THE UNIFORM FRAUDULENT TRANSFER ACT AND THE BANKRUPTCY CODE?” (November 2007 ACTEC 2007 Fall Meeting) By: John A. Terrill, II, with Timothy J. Holman & Bradley Terebelo
LINK
What ACTEC Fellows Should Know About Asset Protection
By Duncan E. Osborne and Elizabeth M. Schurig.
LINK
CLIENT ENGAGEMENT & COMMUNICATION
Client Communication, Engagement Letters & Practice Management Email to Clients
Communicate — Or Be Held Liable
“Evolving case law and ethics rules demand that advisors keep clients extremely well informed.” By Owen G. Fiore, (Trusts & Estates Magazine, November 2002)
LINK
Community Property — Retirement Plans or IRAs
“Written Communications with Clients: Observations on the Survey” by Stephen E. Martin. ACTEC Journal, Winter 1997.
LINK
Guide for Client as Trustee
The Practice Committee Sept. 2003 draft of “What It Means To Be a Trustee, A Guide For Clients.”
LINK
Managing an Estate Practice
“Answers to the 10 Toughest Questions In Managing Your Estate Practice” by George W. Gregory. Client relationships & confidentiality, planning in a time of uncertainty, intergenerational issues and more.
LINK
Noel Ice Wills & Trusts Forms
Includes sample lists and explanatory letters to the client that accompany a comprehensive estate plan.
EXTERNAL LINK Look for: “Sample Letters “)
What Clients Can Teach Us
By William H. Soskin. From the ACTEC Journal, Winter 2003.
LINK
ACTEC Engagement Letter Forms
Example forms for a variety of situations, including spousal representation, multiple generations, lawyer as fiduciary, representation of fiduciary and client under a disability. By the Professional Standards Committee.
LINK
Client Notification re EGTRRA Law Changes
“The Law Changes Again — Whom Do We Tell?” By Charles Ian Nash (A helpful discussion of the issues involved in client notification after EGTRRA, with forms.)
LINK
Communications with Clients
Written Communications with Clients: Observations on the Survey. By Stephen E. Martin — ACTEC Journal, Winter 1997.
LINK
Draft client letters
By William E Olson–Annual Meeting 1999, Seminar B. Client letters re firm retention, Page B-18-WEO. Client letter redraft documents, Page B-21-WEO. Summary of revocable life insurance trust, Page B-26-WEO.
LINK
Fiduciaries’ Lawyers’ Duties
By Charles Bennett (1966 Annual Meeting). Sample Engagement Letter for Representation of Executor & Sample Letter to Estate Heirs — Appendices B & C.
LINK
SELECTED PRACTICAL GUIDELINES FOR FAMILY ENTITY PLANNING AFTER HARPER AND THOMPSON
By T. Randall Grove — 2003 Annual Meeting, Exhibit 4, Page S1-TRG-30. Form letter to clients re scope of representation in estate planning in relation to business matters.
LINK
The Parable of the Conflicted Clients
By Bruce Stone & Susan T. House–2000 Annual Meeting. Sample client letter re-representation of multiple generations of the same family, Page H-27. Multiple party representation in business context, Page H-38. Estate administration engagement letter sample, Page H-44. Irrevocable intervivos trust engagement letter, Page H-50.
LINK
COMMUNITY PROPERTY
ACTEC Community Property Introduction
ACTEC Study 20 Revision
ACTEC Studies (See Study #20)
Alaska Community Property
“Alaska Enacts an Optional Community Property System Which Can Be Elected by Both Residents and Nonresidents – Part One & Part Two” by David G. Shaftel and Stephen E. Greer. ACTEC Journal, Winter 1999.
LINK
Community Property Issues for Non-Community Property Practitioners
By David W. Reinecke. ACTEC Journal, Winter 2002.
LINK
Community Property Overview
“An Overview of Community Property Law” by Jerry A. Kasner & Alvin J. Golden. From the 1999 Annual Meeting.
LINK
Multi-jurisdictional Issues — Community Property
“Multi-Jurisdictional Issues in Estate Planning, Including Community Property” by Richard B. Gregory. Presented at the 2001 Big Sky Regional.
LINK
ENTITIES — PARTNERSHIPS/LLCS/CORPS/CONTROL AGREEMENTS
1. Partnership Agreements Limited Partnership Agreement
“Agreement of Limited Partnership” (Texas) form with mediation provisions.
LINK
2. Professional Partnership Agreements
3. Corporate Formation — Articles of Incorporation
Basic Checklist for C Corporations
Business Planning Committee. ACTEC Notes, Winter 1995.
LINK (go to p. 62.)
Basic Checklist for S Corporations
Additions to the Basic Checklist for S Corporations (in 21 ACTEC Notes 242) by the Business Planning Committee. ACTEC Notes, Fall 1996.
LINK
4. LLC Operating Agreements
FLLC Operating Agreement
Jonathan Rikoon’s draft Family Limited Liability Company Operating Agreement
LINK
5. Checklists
Basic Checklist for C Corporations
Business Planning Committee. ACTEC Notes, Winter 1995.
LINK (go to p. 62.)
Basic Checklist for S Corporations
Additions to the Basic Checklist for S Corporations (in 21 ACTEC Notes 242) by the Business Planning Committee. ACTEC Notes, Fall 1996.
LINK
FLP/FLLC Checklist
Draft Checklist for FLP/FLLC preparation (Fall 2005) from the Business Planning Committee.
LINK
Shareholder Agreements Checklist
Business Planning Committee: Roush – “Shareholder Agreements Checklist”
LINK
6. Control/Shareholder Agreements
Business Succession Planning – A Case Study
By Leonard M. Goldberg–2002 Annual Meeting. Election to include the value of restricted property in gross income in year of transfer under Code § 83(b), Page E-52-LMG.
LINK
Forms for Transferring Control of Family Businesses
“Replacement Forms for Transferring Control of Family Businesses with Discounts in Value for Lack of Control” by Jerold I. Horn. ACTEC Journal, Winter 1998.
LINK
Shareholder Agreement — Drafts of 10/18/03 & 11/15/05
ACTEC Business Planning Committee, Shareholder Agreement Subcommittee (a work in progress).
LINK
7. Trust Provisions for Entities
Closely Held Businesses
Although state law — both statutory and case law — in all jurisdictions provides the Trustee with basic administrative powers, the prudent draftsperson will almost always wish to provide explicit directions which free the Trustee from the duty to diversify, as well as granting the Trustee adequate powers to manage, sell and distribute the business interest. From the Gallo & Hilker sample Forms
LINK (See #22)
FOREIGN PERSONS
Disclosure Requirements–Foreign Trusts & Related Entities
“Internal Revenue Service and Treasury Department Reporting and Disclosure Requirements Applicable to the Formation and Operation of Foreign Trusts and Related Entities” by Duncan E. Osborne.
LINK
Foreign Trusts [Drafting suggestions]
“Foreign Trusts and Alternative Vehicles” by Robert C. Lawrence, III & Christine
LINK
GENERATION SKIPPING TRANSFER TAX
1. Provisions that create entirely exempt shares–Allocation, Disclaimer
Disclaimer — Exempt Shares
“ENHANCING THE USE OF SPOUSAL DISCLAIMERS THAT SALVAGE EXEMPTIONS BUT DO NOT FORGO ENJOYMENT” by Jerold I. Horn. Sample language for disclaimers to generation skipping exempt trust.
LINK
Disclaimer Based GST Planning
“DRAFTING TRUSTS UNDER THE NEW TAX LAW” by Sebastian V. Grassi, Jr.
LINK
Late allocation of GST exemption
By Ellen K. Harrison and Thomas E. Peckham–Summer 2004 Seminar. “Your Exemptions Have Been Disconnected. Do You Know Where Your Exemptions Are and How They Got There?” Trust provision relate allocation of GST Exemption, Page SII-7- TEP/EKH. Trust provision for lifetime trusts intended to be GST exempt, Page SII-15- TEP/EKH.
LINK
2. Provisions that create entirely non-exempt shares
Lifetime trusts intended to be GST exempt
By Ellen K. Harrison and Thomas E. Peckham–Summer 2004 Seminar — “Your Exemptions Have Been Disconnected. Do You Know Where Your Exemptions Are and How They Got There?”
LINK
3. GST Trusts in General
Exempt and Non-Exempt Trusts For Children and Issue
From the Gallo & Hilker sample Forms.
LINK (See #35 Form 3)
Severance and division
By Ellen K. Harrison and Thomas E. Peckham–Summer 2004 Seminar–“Your Exemptions Have Been Disconnected. Do You Know Where Your Exemptions Are and How They Got There?”–Allowing severance that meets the requirements, Page SII-25- TEP/EKH; Provisions to delay trust divisions to postpone GST tax, Page SII-42- TEP/EKH; prevent a unitrust interest from being regarded as a separate share, Page SH- 42-TEP/EKH; give a beneficiary a springing power of appointment, Page SII-42- TEP/EKH; further limit the springing general testamentary power of appointment, Page SII-45-TEP/EKH; require the trustee to hold GST exempt property in a separate trust (living trust), Page SII-49-TEP/EKH; give the trust protector broad powers of amendment, Page SII-59-TEP/EKH.
LINK
Total Return Trusts – Meeting Human Needs and Investment Goals Through Modern Trust Design
By Robert B. Wolf–2004 Fall Seminar. Three TRU GST Plan – exempt and nonexempt marital TRU and credit shelter TRU – ordered unitrust plan, Page SI-317-RBW.
LINK
4. GST tax avoidance for non-exempt trusts
Gift, Estate and Generation Skipping Planning after EGTRRA [Drafting suggestions]
Loyd Leva Plaine & Wendy Ann Wilkenfeld.
LINK
5. Checklists
Post-Mortem Planning Checklist
“Post Mortem Trust Administration Checklist” by Frayda L. Bruton. (Section 5.3 “Generation Skipping Transfer Tax.”) — ACTEC Notes, Spring 2000
LINK
GIFTS — NON-CHARITABLE
Tax Tuning the Estate Plan by Formula
By Carlyn S. McCaffery–1999 Annual Meeting. Gift formula – definitional formula clause, Page S-13-CLM\LAM.
LINK
HEALTH CARE INFORMATION & PROXIES FOR MINORS
Power of Attorney Delegating Powers Over Minor Child Authorization to Release Medical Records and Information Waiver of Privacy
Michigan specific. Provided by Larry Ferguson
LINK
Child Delegation of Powers
Specific to Montana. Provided by Eric K. Anderson
LINK
Delegation of Powers by Husband and Wife
Colorado specific. Provided by Gabriel Heiser
LINK
Emergency Information Form for Children With Special Needs
A form for clients having children with special medical needs to use for providing information about their child’s condition, medications, treating physicians, allergies, etc.
LINK
INSURANCE — ILITS — NOTICES
Notice, summary and trust
By William E Olson–Annual Meeting 1999, Seminar B–Notice of Crummey Withdrawal Right, Page B-110-WEO; Executive summary for revocable life insurance trust, Page B-26-WEO; Irrevocable Life Insurance Trust (South Carolina), Page B-89-WEO.
LINK
Sample Irrevocable Life Insurance Trust
By Sebastian V. Grassi, Jr. ILIT designed to hold a single life policy on the grantor’s life. This form this is an integral part of “SELECTED ISSUES IN DRAFTING THE IRREVOCABLE LIFE INSURANCE TRUST AFTER THE 2001 TAX ACT” to be published as an ACTEC Journal article and works in conjunction with that article from which it will be linked.
LINK
Stop the Bleeding or How to Repair the ILIT with a Damaged Crummey Power or Other Ailments
By Santo Bisignano, Jr.–2004 Annual Meeting, Seminar F. Trust provisions, sample language regarding transfers to the trust estate, Page F-7-STB. Sample language regarding special withdrawal rights, Pages F-8-STB & F-10-STB.
LINK
MISCELLANEOUS — VACATION HOMES, ART, ANIMALS, REMAINS, ELDER/END OF LIFE ISSUES, HOUSE SITTING
1. Provisions for animals
Pet Trusts
Animal Legal & Historical Center
Michigan State University, DCL College of Law. Estate planning for pets, pet custody, table of legislation and UTC §408 Trust for Care of Animals.
EXTERNAL LINK
Humane Society of the United States
Information and forms relating to providing for pets.
EXTERNAL LINK
Pet Trust Illustrative Language
Comprehensive Pet Trust Illustration by Miriam Abrams Goodman of the Colorado Bar.
LINK
Estate Planning for Non-Human Family Members
An Article by Fellow Gerry W. Beyer addressing planning for the estates of people who own pet animals. Sample language is also provided.
EXTERNAL LINK Look for information about pets)
2. Disposition of remains
Appointment of Agent to Control Disposition of Remains (under Ohio law)
Contributed by Jeffry L. Weiler
LINK
Disposition of Remains (under Texas law)
Contributed by Glen A. Yale
LINK
Funeral Arrangement Directions
Contributed by Glen A. Yale
LINK
How Do I Make Arrangements for My Funeral
Contributed by Glen A. Yale
LINK
Notifications
Contributed by Glen A. Yale
LINK
3. Vacation Homes
The Family Cottage
“The Family Cottage: Protecting the Family Jewel or Care and Feeding of the Family Elephant,” by John A. Scott
LINK
“Keeping the Cabin in the Family: A Guide to Joint Ownership and Use”
by Wendy S. Goffe
LINK
“Family Compound Trust”
by Robert A. Wells
LINK
Outline: “Camps, Compounds and Cottages: How to Keep Them in the Family”
by Alexandra T. Breed and Rose A. Costello
LINK
“The Hill Trust” — A trust with family shareholders
LINK
“Declaration of Trust Creating the Cabin Trust,”
by Thomas Christensen, Jr.
LINK
“Cotenancy Agreement,”
by D. Charles Mauritz
LINK
“The Cottage Trust,”
by John A. Scott
LINK
“Vacation Home Co-Tenancy Agreement,”
by E. Burke Hinds
LINK
“Vacation Home Partnership Agreement,”
by Martin J. Hagan
LINK
Tenancy in Common Agreement,
by Ann Reichelderfer
LINK
Lake Home Trust.
by Christopher A. Bjornstad
LINK
LLC Operating Agreement,
Henry M. Grix
LINK
Sample Trust Provisions,
by Arnold W. Hunnewell
LINK
Land Trust,
by Irving S. Schloss
LINK
4. Elder/End of Life Issues
Caring for an Aging Population
By Clifton B. Kruse–2002 Annual Meeting. Residential Guidelines forms – including nursing home checklist, Page B-11-CBK.
LINK
End of Life Issues: Counseling the Client and Family
By James R. Wade & Kay Kramer Wade–1999 Annual Meeting. Five Wishes form, Page G-60-JRW /KKW.
LINK
Introduction to Housing Issues of the Elderly
By Stuart D. Zimring–2002 Annual Meeting, Seminar B. Personal care provisions for Inter Vivos trusts, B-34-SDZ.
LINK
Special Needs Trusts — Disabilities
Caring for an Aging Population (Inter Vivos Trusts)
By Clifton B. Kruse, Jr.–2002 Annual Meeting, Seminar B. Discretionary Inter Vivos Irrevocable Disability Trust Created to Use in Conjunction with Rev. Rul. 76-270, 1976 C.B.-2, 194, Page B-5-CBK. Discretionary Inter Vivos Irrevocable Disability Trust Created to Comply with 42 U.S.C. §1396p(c)(2)(B)(iv), Page B-13-CBK. Durable Power of Attorney for Gifting (Including Authority to Distribute Into a Disability Trust) Page B-15-CBK. Court created supplemental care trust under Obra 1993, B-37-CBK. No discretion income only trust, B-43-CBK.
LINK
Caring for an Aging Population (Wills)
By Clifton B. Kruse, Jr.–2002 Annual Meeting. Will provisions for establishing a testamentary supplemental special care trust, Page B-33-CBK.
LINK
Special Needs Provisions
From the Gallo & Hilker Forms.
LINK (See #4)
Specialized Trust Provisions
By Robert H. Kroney. Trust protection in event of incapacity of beneficiary, Trust distributions if beneficiary is spendthrift, Grantor Trust Provisions to Acknowledge Incompetent Grantor/Beneficiary.
LINK
5. Caretaker/Watchman Agreements Caretaker or watchman agreements for house sitting may be found at the following URLs:
- wehousesit.com/pdf/Agreement.pdf
- housesitters.com.au/downloads/agreement.doc
- housecarers.com/guide_to_housesitting_pages_9.cfm
- Other links were originally available, but no longer work and were removed
Our thanks to Fellow Ted Atlass
for furnishing these addresses.
6. Works of Art
Deeds of Gift and Bequests
By Ralph E. Lerner–2004 Annual Meeting, Seminar H–“Assets That Are Loved Too Much – Planning for Valuable Collectibles”–Trust distributions, Sample deeds of gift of entire or partial interest at Pages H-52-REL, H-53-REL & H-55-REL and specific bequest of a work of art.
LINK
POWERS-DURABLE POWERS OF ATTORNEY, LIVING WILLS, HIPAA
1. Durable Power of Attorney for Health Care/Advance Health Care Directive Durable Healthcare Power of Attorney
Durable Healthcare Power of Attorney and Healthcare Treatment Instructions.
By Bob Wolf.
LINK
Durable POAs — Unmarried Couples
By Jeffrey G. Sherman and Kathleen Ford Bay–2004 Annual Meeting, Seminar C– “Estate Planning for Unmarried Couples: What’s the Difference and What’s the Same? (Bay’s Perspective).” Durable POA, cannot change bene designations clause, Page C- 16-KFB. Compliance with physician/patient confidentiality rules, Page C-17-KFB.
LINK
Health Care Proxies for Minors
Power of Attorney Delegating Powers Over Minor Child Authorization to Release Medical Records and Information Waiver of Privacy
Michigan specific.
Provided by Larry Ferguson
LINK
Child Delegation of Powers
Specific to Montana.
Provided by Eric K. Anderson
LINK
Delegation of Powers by Husband and Wife
Colorado specific.
Provided by Gabriel Heiser
LINK
Emergency Information Form for Children With Special Needs
A form for clients having children with special medical needs to use for providing information about their child’s condition, medications, treating physicians, allergies, etc.
LINK
Living Wills
LINK
2. Durable Power of Attorney for Property Management
Caring for an Aging Population – Strategic Trusts Reasonably Considered by Counsel in Satisfying Elder Client Values
By Clifton B. Kruse, Jr.
2002 Annual Meeting, Seminar B. Durable power of attorney for gifting.
LINK (See Page B-11- CBK)
Retirement Benefits
By Natalie B. Choate–2004 Annual Meeting, Seminar E–“Selected (Practical!) Planning Pointers for Your Client’s Retirement Benefits.” POA clauses for dealing with retirement benefits.
LINK (See Page E-30-NBC)
3. Declaration under Natural Death Act – Living Wills
Living Wills
Text material and links to assist in the preparation of living wills
LINK
4. HIPAA and related powers
Durable & springing powers
By John R. Price and Susan T. House
2004 Annual Meeting, Symposium I–“W hy HIPAA Keeps Us Hoppin’.” Generic hybrid advance health care directive, Page SI-21. Springing health care powers, Page SI-22. Durable power to make agent the principal’s PR Page SI-23. Example of falty durable power, Page SI-26.
LINK
HIPAA
Forms, analysis & text of The Health Insurance Portability and Accountability Act of 1996.
LINK
How To Be A HIPaa Lawyer
LINK
Planning for the HIPAA Privacy Rule
LINK
5. Checklists
6. Escrow of Powers of Attorney
Escrow of Powers of Attorney & Living Wills
Contributed by Fellow Amos Goodall: Instructions to attorney for release of last will and testament, durable power of attorney, and living will to agents, doctors and others.
LINK
PRENUPTIAL AND POSTNUPTIAL AGREEMENTS
Dealing with Retirement Benefits
Natalie B. Choate
1999 Annual Meeting, Seminar E–“Estate Planning for Retirement Benefits: Selected Case Studies.” Trust provision, second marriage, re distribution of qualified plan, Page E-26-NBC.
LINK
RETAINED INTERESTS — GRATS, GRUTs, QPRTs, Planned Sales, etc.
1. Grantor Retained Income Trusts (GRITS/)(QPRTS)
Drafting QPRTs [Drafting advice re IRS Form]
“Need A Form? Maybe You Should Call The IRS: An Analysis and Annotation of the IRS’ QPRT and CRT Forms”
by Edward Jay Beckwith.
LINK
IRS QPRT Form
Sample form from the IRS — Rev Proc 2003-42.
LINK
October 7, 1994 Beaver Creek, Colorado, Forms
GRAT/QPRT
(Carlyn McCaffrey)
LINK
2. Grantor Retained Annuity Trusts (GRATS)
October 7, 1994 Beaver Creek, Colorado, Forms
GRAT/QPRT
(Carlyn McCaffrey)
LINK
Sample Forms — GRATs
By Dennis I. Belcher and Michael L. Graham–2004 Annual Meeting, Seminar B–“The Flood is Coming! Plan Now While the Waters are Low. Using Interest Rate Sensitive Techniques to Maximize Transfers of Wealth.” Grantor retained annuity trust (Texas), Page B-1-MLG. Formula GRAT based on specified remainder, Page B-24-MLG. Codicil language Walton GRAT and payments received by estate after death of grantor, Page B- 25-MLG.
LINK
3. Grantor Retained Unitrusts (GRUTS)
4. Intentionally Defective Grantor Trusts
Sale of FLP Units to an IDIT
By Jerome Deener
Presented to the Business Planning Comm. at Tucson 2002. Reports on gift tax audit issues.
LINK
5. Installment Sales
6. Intra-family Loans
7. Private Annuities
8. Self-cancelling Installment Notes
Contingent Price Promissory Note Contributed
by W. Birch Douglass, III
LINK
Sample Agreement of Sale and SCIN
Contributed by Dana L. Mark
LINK
Sample SCIN
Contributed by Richard S. Scolaro
LINK
Sample SCIN
Contributed by Richard A. Marone
LINK
Self-Canceling Promissory Note
Contributed by Dan McLean
LINK
Self-Canceling Installment Sales Agreement
Contributed by Dan McLean
LINK
RETIREMENT ASSETS & PLANNING
Estate Planning for Retirement Benefits: Forms for IRAs
By Natalie B. Choate
1999 Annual Meeting, Seminar E. Qualified Plans and IRAs– Beneficiary Designation Form, Page E-8-NBC;Excerpt from revocable trust, E-13-NBC; Comply with IRS re marital deduction, benefits to a trust, E-15-NBC; provision to allow surviving spouse rollover, E-16-NBC; provision giving spouse right to withdraw principal based on ascertainable standard, E-16-NBC; distributable amounts for underage beneficiaries continue to be held, E-16-NBC; letter to client re IRA withdrawals, E-29- NBC; letter to IRA custodian re distributions; letter to client re MRDs from IRA, E-32- NBC; printout to client re IRA MRD, E-35-NBC.
LINK
Estate Planning for Retirement Benefits: Forms for Qualified Plans — Trust Provisions I
By Natalie B. Choate
1999 Annual Meeting, Seminar E — Family trust maximum advantage of inc. tax deferral from MRD, E-18-NBC; distribution – second marriage, E-26- NBC.
LINK
Estate Planning for Retirement Benefits: Forms for Qualified Plans — Trust Provisions II
By Natalie B. Choate
1999 Annual Meeting, Seminar E — Comply with IRS statements re marital deduction requirements for retirement benefits payable to trust, E-27-NBC; shift to spouse inc. tax burden on benefits funding gift of principal of marital trust = to income of credit shelter trust, E-28-NBC; amounts distributable to benes under certain age be held for their benefit, E-28-NBC; formula requiring external facts to apply not recommended, E-25-NBC; bene designation form requiring plan administrator to provide info to participant’s PR, E-47-NBC; sample letter from PR requesting info, E-48-NBC; sample provision defining retirement benefits, E-17&18-NBC; trust provision re accounting for retirement benefits, E-19-NBC; sample clause for unitrust valuation formula deducting potential inc. tax, E-21-NBC.
LINK
Planning for Pre- and Post-mortem Distributions from IRAs and Qualified Plans
By John T. Bannen
2004 Annual Meeting, Seminar E. Sample clause for unitrust valuation formula, deducting potential income tax & sample clause for unitrust valuation formula not deducting potential income tax. Sample letter to IRS requesting waiver of the 50% excise tax penalty, Page E-37-JTB. Proposed language for QTIP trust named as beneficiary of an IRA account or qualified plan, Page E-11-JTB. Notice of spouse’s right to benefits – spouse’s acknowledgment and waiver of profit sharing benefits, Page E-vii- JTB.
LINK
Retirement Plan Benefits Trust Savings Clause
Contributed by Andrew J. Willms.
Savings clause providing that the Trustee can convert to a conduit trust if, in the Trustee’s discretion, doing so is needed to allow the retirement account to be stretched out over the beneficiary’s lifetime, and the tax benefits of a stretch-out are not outweighed by concerns related to potential creditor claims and the like related to the beneficiary. Drafted for use when the account owner is single. The language differs in the case of a married person as to which the wording depends in part on whether the trust is the primary or secondary beneficiary. If secondary, it would be funded during the spouse’s life only if he/she disclaims), and if primary, is it intended to be a conduit trust or not.
LINK
Selected (Practical!) Planning Pointers for Your Client’s Retirement Benefits
By Natalie B. Choate
2004 Annual Meeting, Seminar E — Bene definition for charity as plan bene not through trust, E-22-NBC. Sample provision defining retirement benefits, Pages E-17-NBC & E-18-NBC. Trust provision re accounting for retirement benefits, E- 19-NBC.
LINK
The Marital Deduction: Selected Traps and Opportunities
By Beverly R. Budin
1999 Annual Meeting, Part I Seminar A – Trust provision to qualify IRA distributions for the marital deduction, Page A-28-BRB.
LINK
SPECIAL SITUATIONS, SPECIAL ASSETS & SPECIAL TYPES OF CLIENTS
Assets That Are Loved Too Much – Planning for Valuable Collectibles
By Ralph E. Lerner
2004 Annual Meeting, Seminar H. Sample letter requesting information before contribution, Page E-22-REL. Will provision – specific bequest of a work of art, Page H-57-REL.
LINK
End of the World Provisions
Failure of issue — planning for the ultimate contingencies — charitable residuary provisions. From the Gallo & Hilker sample Forms.
LINK (See #11)
Forms for Literary and Other Arts Executors
Sample Forms by Jon Gallo & Ann Hilker.
LINK
Non-Traditional Births
Surrogate Parenting, In Vitro Fertilization, Equitable Adoption, Acknowledgement of Children Born Out of Wedlock — from the Gallo & Hilker sample Forms.
LINK (See #10)
Order of Deaths
Planning for the order of deaths. From the Gallo & Hilker sample Forms.
LINK (See #12)
Special Types of Clients & Special Assets — Art, Agriculture, Collectibles
Art Law
“Art Law: The Guide For Collectors, Investors, Dealers and Artists”,
by Fellow Ralph E. Lerner.
Commercial aspects of buying and selling art work, Fine-art multiples transactions, Protection of artists rights, including copyright interests, resale rights, Appraisals, Museum law, Tax & financial aspects of IRS classification as a collector, investor or dealer, Tax & estate planning issues faced by collectors and artists, including income tax liability & gifts to charity.
Please search the internet for the title to find the latest edition
Special Assets – “Problems of Special Assets: Tax and Dispositive Considerations Involving Collectibles and Creative Works”
By Edward Beckwith.
From the 1990 Annual Meeting.
LINK
The Art Collector and the Tax Collector
by Sonny Kamm
LINK
The Art Collector and the Tax Collector “Works of Art and Other Items of Tangible Personal Property: Valuation- Taxation-Planning”
by Ralph E. Lerner.
2002 Annual Meeting, Seminar F.
LINK
TAX APPORTIONMENT
Death Tax Apportionment — Clayton QTIP
Sample language for for “Death Tax Apportionment Issues” (provision concerning the apportionment of estate taxes attributable to the property that is not elected for the marital deduction in Clayton contingent QTIP marital deduction trust) from “DRAFTING TRUSTS UNDER THE NEW TAX LAW” by Sebastian V. Grassi, Jr.
LINK
Managing Your Practice During the Phase-Out of the Estate Tax
By Donald H. Kelley
Fall 2001 Seminar. Illustrative powers and exhonerations to the executor for basis allocation, Page 48-DHK. Illustrative tax burden clause during phase- in, Page 49-DHK.
LINK
Perpetual Trusts – Dynasty or Disaster
By Thomas P. Sweeney and Malcolm A. Moore
Fall 1999 Seminar. Sample trust provision re payment of taxes and expenses of beneficiary.
LINK (Page 17-TPS)
Tax Apportionment Clauses
By Sebastian V. Grassi, Jr.
Michigan EPIC Death Tax Apportionment (clauses for Pourover Wills and Revocable Trusts)
LINK
Tax Proration
From the Gallo & Hilker sample Forms.
LINK
TRUSTS – MARITAL DEDUCTION DRAFTING & FUNDING – BASIS ALLOCATION
1. Funding formulas for marital deduction trusts & basis allocation
Estate Planning for Retirement Benefits
By Natalie B. Choate
1999 Annual Meeting. Compliance with IRS statements regarding marital deduction requirements (applicable to retirement benefits payable to a trust), Pages E-15-NBC & E-27-NBC. Re IRA to allow surviving spouse to roll over to own IRA any retirement benefits that are required to be allocated to the marital trust, Page E-16- NBC. Second marriage – re distribution of qualified plan, Page E-26-NBC. Shift to the spouse the inc. tax burden on retirement benefits used to fund the gift of principal of the marital trust equal to income of the credit shelter trust, Page E-28-NBC. Fractional formulas dividing assets between marital and credit shelter shares, Page E-14-NBC.
LINK
Managing Your Practice During the Phase-Out of the Estate Tax
By Donald H. Kelley
2001 Fall Seminar. Illustrative pecuniary to the marital share provisions applicable during phase-in, Page 43-DHK. Illustrative pecuniary to the marital share provisions for basis allocation, Page 44-DHK. Illustrative pecuniary to the family share provisions for basis allocation, Page 45-DHK. Universal all years, all events QTIP, Page 50-DHK.
LINK
Marital Deduction Formula Clauses
A selection of formula clauses (drafted pre-EGTRRA) from the Gallo & Hilker sample Forms.
LINK
Marital Deduction Formulas [Drafting Suggestions]
By Sebastian V. Grassi, Jr.
Analysis, charts and comparisons of various marital deduction funding formulas — when to use and when to avoid.
LINK
Marital Deduction Planning Under the 2001 Act
By Lauren Y. Detzel
2001 Fall Seminar. Fractional share formula with pecuniary cap on the amount of non-marital share, Appendix 1. Fractional share formula with true fractional share cap on non-marital share, Appendix 2. Family non-marital share and spousal non- marital share with arbitrary cap on the family share, Appendix 3. Language to produce the smallest non-marital share sufficient to recieve a 1.3M aggregate basis increase, Appendix 4. Language to produce the largest non marital share that will absorb a 1.3M aggregate basis increase, Appendix 5. Fairly Representative clause, Appendix 6.
LINK
The Marital Deduction: Selected Traps and Opportunities
By Beverly Budin
1999 Annual Meeting. Trust provision to qualify IRA distributions for the marital deduction, Page A-28-BRB. 5 and 5 power, Pages A-28-BRB & A-30-BRB.
LINK
Total Return Trusts – Meeting Human Needs and Investment Goals Through Modern Trust Design–Marital Legacies
By Robert B. Wolf
2004 Fall Seminar. Marital and credit shelter trusts/pecuniary bequest formula/separate total return unitrusts/payout for spouse, Page SI-308-RBW . Marital/credit shelter trusts/fractional share division/ordered unitrust provisions, Page SI- 312-RBW.
LINK
2. Funding formulas related to state death taxes
Effect of Decoupling on Drafting
“Effect of The Decoupling of State Death taxes From The EGTRRA State Death Tax Credit on Deathtime and Lifetime Planning” by Robert C. Pomeroy. (PDF format) [Drafting suggestions for adjusting existing documents]
LINK
3. Disclaimer Trusts & Disclaimer Provisions
Disclaimer Based GST Planning
Sample language for for “Disclaimer Based GST Planning” from “DRAFTING TRUSTS UNDER THE NEW TAX LAW” by Sebastian V. Grassi, Jr.
LINK
Disclaimer Bequests — Death Taxes — Credit Trust
Sample language for for “Drafting example of disclaimable bequest to spouse” — “Durable Powers of Attorney & Disclaimers” — “Disclaimers and Apportionment of Death Taxes” — “Surviving Spouse as Trustee of Credit Shelter (Disclaimer) Trust” — “Closing Letter to Client Regarding Disclaimer Trust” — from “DRAFTING TRUSTS UNDER THE NEW TAX LAW” by Sebastian V. Grassi, Jr.
LINK
Disclaimers in General
Disclaimer provisions from the Gallo & Hilker sample Forms.
LINK
Managing Your Practice During the Phase-Out of the Estate Tax
By Donald H. Kelley
Fall 2001 Seminar. Language for a disclaimer provision and basic language of a trust for disclaimed property, Page 17-DHK.
LINK
Tuning the Tax Plan by Formula
By Carlyn S. McCaffrey
1999 Annual Meeting. Definitional formula clause re a Section 2518 renunciation.
LINK (Page S-13-CMC/LAM)
4. Basis Allocation
Managing Your Practice During the Phase-Out of the Estate Tax
By Donald H. Kelley
Fall 2001 Seminar. Appendix “A” – Illustrative Pecuniary to the Marital Share Provisions Applicable During Phase-In. Appendix “B” – Illustrative Pecuniary to the Marital Share Provisions for Basis Allocation. Appendix “C” – Illustrative Pecuniary to the Family Share Provisions for Basis Allocation.
LINK
Marital Deduction Planning Under the 2001 Act
By Lauren Y. Detzel
2001 Fall Seminar. Appendix 4 – Language to produce the smallest non marital share sufficient to receivea 1.3M aggregate basis increase. Appendix 5 – Language to produce the largest non marital share that will absorb a 1.3M aggregate basis increase. Appendix 6 – Language to produce a fairly representative selection of assets.
LINK
5. IRAs and Qualified Plans
Estate Planning for Retirement Benefits: Selected Case Studies
By Natlie B. Choate
1999 Annual Meeting. Paragraph to comply with IRS statements re marital deduction requirements applicable to retirement benefits payable to a trust, Page E-27-NBC. Paragraph to shift to the spouse
the income tax burden on retirement benefits used to fund the gift of principal of the marital trust equal to income of the credit trust, Page E-28-NBC. Trust provision indicating that amounts otherwise distributable to beneficiaries under a certain ageare to be held in trust for their benefit Page E-28-NBC.
LINK
Planning for Pre- and Post-mortem Distributions from IRAs and Qualified Plans
By John T. Bannen
2004 Annual Meeting, Seminar E. Proposed language for QTIP trust named as beneficiary of an IRA account or qualified plan, Page E-ii-JTB.
LINK
6. Qualified Domestic Trust (QDOT)
HOT TOPICS IN THE MARITAL DEDUCTION–THE ISSUES WE FACE TODAY
By Howard M. Zaritsky & Joseph 0. Rubinelli, Jr.
1997 Fall Meeting. QTIP (With QDOT Provisions), Page JOR&HMZ-18.
LINK
7. QTIP Drafting
QTIP with Clayton Contingent QTIP Election
Sample language for for “All to Surviving Spouse in a QTIP Marital Deduction Trust with Clayton Contingent QTIP Election” and “Residue of Trust Estate to QTIP Marital Deduction Trust Subject to Clayton Contingent QTIP Election and Survival of Spouse” from “DRAFTING TRUSTS UNDER THE NEW TAX LAW” by Sebastian V. Grassi, Jr.
LINK
Specialized Trust Provisions
By Robert H. Kroney
Grantor Trust – QTIP Distributions to Second Wife, Including Minimum Payments.
LINK
TRUSTS — IRREVOCABLE, CHARITABLE TRUSTS, TESTAMENTARY TRUSTS & TRUs
Irrevocable inter vivos trust engagement letter
By Bruce Stone & Susan T. House
2000 Annual Meeting, Seminar H.
LINK (Page H-50)
1. Long-term Family Pot Trusts
Pot Trusts
Fairness is the task of the pot trust. They have achieved significance in the drafting of dynasty trusts for generation-skipping transfer tax purposes, but also serve well the two- family setting and the single family whose children range widely in age. From the Gallo & Hilker sample Forms.
LINK (See #24)
2. Trusts for Minors, Incompetents & Disabled Persons
Guardians Use of Residence
Guardians use of residence on behalf of minors. From the Gallo & Hilker sample Forms.
LINK
Provisions for Minors & Incompetents
From the Gallo & Hilker sample Forms.
LINK
Special Needs Trusts — Disabilities
Caring for an Aging Population (Inter Vivos Trusts)
By Clifton B. Kruse, Jr.
2002 Annual Meeting, Seminar B. Discretionary Inter Vivos Irrevocable Disability Trust Created to Use in Conjunction with Rev. Rul. 76-270, 1976 C.B.-2, 194, Page B-5-CBK. Discretionary Inter Vivos Irrevocable Disability Trust Created to Comply with 42 U.S.C. §1396p(c)(2)(B)(iv), Page B- 13-CBK. Durable Power of Attorney for Gifting (Including Authority to Distribute Into a Disability Trust) Page B-15-CBK. Court created supplemental care trust under Obra 1993, B-37-CBK. No discretion income only trust, B-43-CBK.
LINK
Caring for an Aging Population (Wills)
By Clifton B. Kruse, Jr.
2002 Annual Meeting. Will provisions for establishing a testamentary supplemental special care trust, Page B-33-CBK.
LINK
Special Needs Provisions
From the Gallo & Hilker Forms.
LINK (See #4)
Specialized Trust Provisions
By Robert H. Kroney
Trust protection in event of incapacity of beneficiary, Trust distributions if beneficiary is spendthrift, Grantor Trust Provisions to Acknowledge Incompetent Grantor/Beneficiary.
LINK
3. Separate Trusts for Children and Grandchildren
4. Residences
Providing a Home for a Beneficiary
Buying a Home for a Beneficiary or Remodeling (includes starting a business). From the Gallo & Hilker sample Forms.
LINK (See #32)
Provisions for Use of Residences
From the Gallo & Hilker sample Forms.
LINK
Tax Problems Relating to Residences Held in Trusts
Forms for the use and retention of residences in trusts and their tax implications. From the Gallo & Hilker sample Forms.
LINK
5. Charitable Trusts/Pooled Income Funds/Gift Annuities
Charitable Trust Tax Compliance Forms
“Adventures in Partial Interests,” by Jonathan G. Blattmacher & Edward H. Heintzberger.
Includes form language for charitable annuity and lead trusts designed to satisfy the 10% test.
LINK
a. Charitable Remainder Trusts
IRS Charitable Remainder Trust Forms
By Lawrence P. Katzenstein
“INTERNAL REVENUE SERVICE ISSUES SAMPLE CHARITABLE REMAINDER UNITRUST FORMS” Charitable Planning Committee, Fall 2005.
LINK
IRS Charitable Trust Forms [Drafting advice and IRS Forms]
“Need A Form? Maybe You Should Call The IRS: An Analysis and Annotation of the IRS’ QPRT and CRT Forms” by Edward Jay Beckwith — Includes links to Rev. Proc. 2003-53 (Inter-Vivos CRAT with One Measuring Life); Rev. Proc. 2003-56 (Inter-Vivos CRAT with Annuities Payable Concurrently and Consecutively for Two Measuring Lives); Rev. Proc. 2003-58. (Testamentary CRAT Providing for Annuity Payments for a Term of Years).
LINK
Speciman Charitable Remainder Annuity Trusts & Unitrusts
By Conrad Teitel
2002 Summer Seminar. Unitrust STAN-CRUT one life, Page 144. NIM-CRUT, two life, donor’s separate property; Page 151-CT. Flip-CRUT, two life, donor’s separate property; Page 159-CT. CRAT, one life, bank as trustee; Page 169. CRAT, two lives, joint property or community property; Page 176-CT; Charitable remainder unitrust (New York), Page 147-CT.
LINK
Spousal Waiver of Elective Share — 2005-24
“Northern Trust Will and Trust Forms – Charitable Remainder Trusts -Revenue Procedure 2005-24 – Spouse Waives Right to Use Assets of Charitable Remainder Trust to Satisfy an Elective Share”
contributed by Susan D. Snyder.
LINK
Tax Tuning the Estate Plan by Formula I
By Carlyn S. McCaffery
1999 Annual Meeting. Formula inclusion of gifts in the gross estate, page S-18-CMC/LAM.
LINK
Tax Tuning the Estate Plan by Formula II
By Carlyn S. McCaffery
1999 Annual Meeting. Formula allowing the creator of a charitable remainder annuity trust to define the annuity in terms of a fraction or percentage, page S-11-CMC/LAM.
LINK
b. Charitable Lead Trusts
Charitable Lead Trust — Sample Form
By Michael L. Graham
2004 Annual Meeting, Seminar B – Sample Form for charitable lead trust, Page B-26-MLG.
LINK
c. Private Foundations
d. Pooled Income Funds
Charitable Remainder Trusts – Gathering Windfalls, Avoiding Pitfalls and Pratfalls
By Conrad Teitell
2002 Summer Meeting. Speciman pooled income fund governing instruments: Charity is trustee, Page 186-CT; one life (New York), Page 192-CT; two lives joint & survivor, jointly owned property or community property (New York), Page 194-CT; two lives, separate property (New York), Page 197-CT.
LINK
e. Charitable Gift Annuities
Speciman Gift Annuity Agreements
By Conrad Teitell
2002 Summer Seminar. One life (New York), Page 200-CT. Two lives, separate property (New York), Page 203-CT. One life, Page 205-CT.
LINK
6. Total Return Unitrusts
Designing TRUs
“TOTAL RETURN TRUSTS – MEETING HUMAN NEEDS AND INVESTMENT GOALS THROUGH MODERN TRUST DESIGN” by Bob Wolf. From the 2002 Annual Meeting. Includes forms and mathematical models.
LINK
Total Return Trusts – Meeting Human Needs and Investment Goals Through Modern Trust Design
By Robert B. Wolf
2004 Fall Seminar. Sample provisions related to the prudent investor rule, uniform principal and income acts and total return trusts, Page SI-332-RBW . Three TRU GST Plan – exempt and nonexempt marital TRU and credit shelter TRU – ordered unitrust plan, Page SI-317-RBW . Marital QTIP total return unitrust with sprinkle credit shelter trust, Page SI-320-RBW. TRU CAP Index trust, SI-324-RBW . Residuary TRU with optional “no-drop” language, fully discretionary trust for children to age 25 and indexed annuity trust for children over age 25, SI-326-RBW . Bernstein Collar unitrust, Page SI- 326-RBW.
LINK
Total Return Trusts – Meeting Human Needs and Investment Goals Through Modern Trust Design–Marital Legacies
By Robert B. Wolf
2004 Fall Seminar. Marital and credit shelter trusts/pecuniary bequest formula/separate total return unitrusts/payout for spouse, Page SI-308-RBW . Marital/credit shelter trusts/fractional share division/ordered unitrust provisions.
LINK (See Page SI-312-RBW)
7. Inter Vivos Qualified Terminable Interest Property Trusts (QTIP Trust)
Total Return Trusts – Meeting Human Needs and Investment Goals Through Modern Trust Design
By Robert B. Wolf
2004 Fall Seminar. Marital QTIP total return unitrust with sprinkle credit shelter trust.
LINK (See Page SI-320-RBW)
8. Qualified Domestic Trust (QDOT Trust)
9. Dynasty Trusts
Dynasty Trust Clauses & Forms
ACTEC Dynasty Trust page — Gallo & Hilker Dynasty Trust clauses and forms. By Jonathan G. Blattmachr: Revised Megatrust form — Generation Skipping Trust designed to exist in perpetuity under the Delaware statute — with broad trustee discretions. Descendant’s Trust form — Generation Skipping Trust under the Alaska perpetuities statute.
LINK
Design Strategies for Dynasty Trusts – Practical Alternatives for Drafting and Explaining Some Key Concepts
By Frederick R. Keydel & Harvey B. Wallace
1999 Annual Meeting. Selective trust provisions for a CST type irrevocable dynasty trust agreement; Page FRK/HBW – Exhibit 5, page 1.
LINK
Perpetual Trusts: Dynasty or Disaster? Will Beneficiaries Be Happy Campers Or Plaintiffs?
By Thomas P. Sweeney & Malcolm A. Moore
1999 Fall Seminar. Portability clause, Page 24-TPS. Power of appointment for beneficiary’s share, Page 26-TPS.
LINK
10. Medicaid Trusts
Medicaid Planning
by Clifton B. Kruse, Jr.
“Caring for an Aging Population – Strategic Trusts Reasonably Considered by Counsel in Satisfying Elder Client Values”
LINK
11. Trust Situs & Choice of Law
Moving Trusts and Applicable Law
The inclusion of permission to move the situs of administration of the trust can save costly court proceedings. In addition, in the situation where the trustee administers assets located in one state from his or her office outside that state, such forms clarify that an inadvertent change of situs is not a prohibited event. From the Gallo & Hilker sample Forms.
LINK (See #19)
12. Amending Irrevocable Trusts Fixing Broken Plans
“Broken Estate Plans: Fix or Replace?”
by Alan S. Acker
includes a discussion of amending irrevocable trusts.
LINK
Gallo & Hilker Forms
Scroll down to “33. Amending Revocable and Irrevocable Trusts” — forms for amendment of irrevocable trusts by Trust Protector.
LINK
TRUSTS — REVOCABLE TRUSTS
Checklist for Transfer of Property to Revocable Trust
From the Practice Committee: Designed to assist the lawyer in determining the appropriateness of transferring real property or tangible personal property to a revocable trust.
LINK
1. Trusts for Unmarried Persons
2. Single Settlor Trusts
3. Joint Trusts
The Joint Revocable Trust — Community Property
“Community Property Issues for Non-Community Property Practitioners” by David W. Reinecke — Appendix “B”
LINK
4. Trusts Using Spousal Estate Tax Exemption/Formula Marital or Credit Trust Share Marital Deduction Funding Formulae Sample marital deduction formula provisions, and basis increase provisions, applicable to wills and revocable trusts.
Estate Planning for Retirement Benefits
By Natalie B. Choate
1999 Annual Meeting. Compliance with IRS statements regarding marital deduction requirements (applicable to retirement benefits payable to a trust), Pages E-15-NBC & E-27-NBC. Re IRA to allow surviving spouse to roll over to own IRA any retirement benefits that are required to be allocated to the marital trust, Page E-16-NBC. Second marriage – re distribution of qualified plan, Page E-26-NBC. Shift to the spouse the inc. tax burden on retirement benefits used to fund the gift of principal of the marital trust equal to income of the credit shelter trust, Page E-28-NBC. Fractional formulas dividing assets between marital and credit shelter shares, Page E-14-NBC.
LINK
Managing Your Practice During the Phase-Out of the Estate Tax
By Donald H. Kelley
2001 Fall Seminar. Illustrative pecuniary to the marital share provisions applicable during phase-in, Page 43-DHK. Illustrative pecuniary to the marital share provisions for basis allocation, Page 44-DHK. Illustrative pecuniary to the family share provisions for basis allocation, Page 45-DHK. Universal all years, all events QTIP, Page 50-DHK.
LINK
Marital Deduction Formula Clauses
A selection of formula clauses (drafted pre-EGTRRA) from the Gallo & Hilker sample Forms.
LINK
Marital Deduction Formulas [Drafting Suggestions]
Analysis, charts and comparisons of various marital deduction funding formulas — when to use and when to avoid. By Sebastian V. Grassi, Jr.
LINK
Marital Deduction Planning Under the 2001 Act
By Lauren Y. Detzel
2001 Fall Seminar. Fractional share formula with pecuniary cap on the amount of non-marital share, Appendix 1. Fractional share formula with true fractional share cap on non-marital share, Appendix 2. Family non- marital share and spousal non-marital share with arbitrary cap on the family share, Appendix 3. Language to produce the smallest non-marital share sufficient to recieve a 1.3M aggregate basis increase, Appendix 4. Language to produce the largest non marital share that will absorb a 1.3M aggregate basis increase, Appendix 5. Fairly Representative clause, Appendix 6.
LINK
The Marital Deduction: Selected Traps and Opportunities
By Beverly Budin
1999 Annual Meeting. Trust provision to qualify IRA distributions for the marital deduction, Page A-28-BRB. 5 and 5 power, Pages A- 28-BRB & A-30-BRB.
LINK
Total Return Trusts – Meeting Human Needs and Investment Goals Through Modern Trust Design–Marital Legacies
By Robert B. Wolf–2004 Fall Seminar. Marital and credit shelter trusts/pecuniary bequest formula/separate total return unitrusts/payout for spouse, Page SI-308- RBW. Marital/credit shelter trusts/fractional share division/ordered unitrust provisions, Page SI-312-RBW.
LINK
5. Revocable Trust for Small Estate
6. Revocable “House” Trust
7. Incapacity of Grantor
Provisions for Grantor Incapicity
Distributions on Incapacity of Grantor — Administration of Grantor Trust During Incapacity. From “Specialized Trust Provisions” by Robert H. Kroney.
LINK (See: Exculpation Provisions for Trustee)
8. Gifts Through Revocable Trusts
Making Gifts Through Revocable Trusts
Many living trust forms permit the Trustee to make distribution to persons other than the donor, at the direction of the Trustor. From the Gallo & Hilker sample Forms.
LINK
Tax Tuning the Estate Plan by Formula
By Carlyn S. McCaffrey
1999 Annual Meeting, Part III. Gift formula – definitional formula clause, Page S-10-CMC\LAM.
LINK
9. IRA Distributions From Revocable Trusts
Estate Planning for Retirement Benefits
By Natlie B. Choate
1999 Annual Meeting — Seminar E. Exerpt from revocable trust re IRA distribution, Page E-13-NBC. Trust provision giving spouse right to withdraw principal based on an ascertainable standard, Page E-13-NBC. IRA provisions indicating that the amounts distributable to beneficiaries under a certain age are to be held in trust for their benefit, Page E-16-NBC.
LINK
TRUSTS — SPECIAL PROVISIONS — DISABILITIES — FUNDING
1. Special Needs Trusts — Disabilities
Caring for an Aging Population (Inter Vivos Trusts)
By Clifton B. Kruse, Jr.
2002 Annual Meeting, Seminar B. Discretionary Inter Vivos Irrevocable Disability Trust Created to Use in Conjunction with Rev. Rul. 76-270, 1976 C.B.-2, 194, Page B-5-CBK. Discretionary Inter Vivos Irrevocable Disability Trust Created to Comply with 42 U.S.C. §1396p(c)(2)(B)(iv), Page B-13-CBK. Durable Power of Attorney for Gifting (Including Authority to Distribute Into a Disability Trust) Page B-15- CBK. Court created supplemental care trust under Obra 1993, B-37-CBK. No discretion income only trust, B-43-CBK. (PDF format)
LINK
Caring for an Aging Population (Wills)
By Clifton B. Kruse, Jr.–2002 Annual Meeting. Will provisions for establishing a testamentary supplemental special care trust, Page B-33-CBK.
LINK
Special Needs Provisions
From the Gallo & Hilker Forms.
LINK
Specialized Trust Provisions
By Robert H. Kroney. Trust protection in event of incapacity of beneficiary, Trust distributions if beneficiary is spendthrift, Grantor Trust Provisions to Acknowledge Incompetent Grantor/Beneficiary.
LINK
2. Specialized Trust Provisions
Establishment of Endowed Professorship
Example language and suggestions from Fellow Bob Bannon for the establishment of an endowed professorship at the end of a trust.
LINK
Specialized Trust Provisions
By Robert H. Kroney. Incapacity, administration, marital agreements, special distribution provisions and more.
LINK
3. Incentive Trust Forms, Bad Behaviors, Flexible & Discretionary Provisions
Incentive Planning
From the Gallo & Hilker NonTax Forms.
LINK
Incentive Trust Forms
“Incentive Trusts: An Idea Whose Time Has Come (And Gone?)” By R. James Young. Includes sample Incentive provisions for trusts designed to encourage certain beneficiary behaviors and other sample language relating to incentive trusts.
LINK
Incentive Trusts — Le Van
Remarks on Incentive Trusts and Raising Rich Kids by Gerald Le Van, from his Business Family Bluebook.
EXTERNAL LINK
Incentive Trusts, Bad Behaviors and Trust Advisors
“Drafting for the Use of Incentive Trusts and Bad Behaviors,” from “Drafting for Flexibility In Light of Possible Tax Reform” (P. Daniel Donohue with forms furnished by Paul Frimmer). Includes Flexible and discretionary drafting provisions for trust beneficiaries. From the Big Sky Regional Meeting (May 18-20, 2001).
LINK
Incentive Trusts: Considerations, Uses and Alternatives
By Marjorie J. Stephens
From the 2003 Annual Meeting
LINK
Planning and Drafting to Influence Behavior
By Howard M. McCue, III
2003 Annual Meeting, Seminar H. Discussion of drafting ideas and techniques to affect beneficiary behavior. Sample provisions, Page H-15.
LINK
Regulating Behavior
Withholding trust distributions for drugs, gambling, cults, etc. Contributed
by Stephen L. Pruss
LINK
4. Split Purchase Trusts/Interest Sensitive Techniques
Using Interest Rate Sensitive Techniques to Maximize Transfers of Wealth
Forms By Michael L. Graham
2004 Annual Meeting, Seminar B. Split purchase trust, Page B- 46-MLG.
LINK
5. Structured Settlements Personal injury settlement trusts and trusts for adult disabled children
Personal Injury Settlement Trusts Following O.B.R.A. ’93 and Its Medical Provisions
By Clifton E. Kruse, Jr.
A discussion of Settlement Trusts with forms. From ACTEC Notes, Fall 1995.
LINK
Tax and Planning Issues for Personal Injury Settlement Trusts
By Steve Brand
Analysis and Forms relating to Structured Settlements. From ACTEC Notes, Nov. 1995.
LINK
Trusts for Adult Disabled Children
Andy Hook’s Newsletter on the significant changes in the SSA’s position on funding d(4)(a) trusts for adult disabled children. These trusts are frequently used to protect inheritances and personal injury settlements for persons with significant disabilities.
LINK
6. Principal & Income Allocations
Principal & Income Allocations
From the Gallo & Hilker sample Forms.
LINK (#5)
7. Ascertainable Standards
Ascertainable Standards Clauses
From the Gallo & Hilker sample Forms.
LINK (#7)
8. Conflicts of Interest & Self-Dealing
Conflicts of Interest; Self-Dealing
State law typically defines any use of funds by a trustee in a venture in which he or she can personally benefit as a breach of trust — whether to use language excusing the trustee from strict adherence to this strict rule. From the Gallo & Hilker sample Forms.
LINK (See #20)
9. Trust Termination Clauses
Form for Illinois Small Trust Termination
Contributed by Susan D. Snyder
LINK
Trust Termination — Independent Trustee — Special Power Holder
Sample language for “Trust Termination and Independent Trustee” & “Trust Termination and Limited Power of Appointment by Special Power Holder” from “DRAFTING TRUSTS UNDER THE NEW TAX LAW” by Sebastian V. Grassi, Jr.
LINK
10. Trust Funding
Trust Funding
Declaration of Trust Ownership Form for transfer of properties to trustee, contributed by Andrew J. Willms.
LINK
TRUSTS — TRUSTEES
1. Trust Protectors & Advisors
Amendment of Trust
Form for Trust Protector to amend irrevocable trust. From the Gallo & Hilker sample Forms.
LINK (#33 Form 4)
Candidates for the Frying Pan – Practical Considerations for Individual Trustee Selection and Succession
By Kimbrough Street
Fall 2003 Seminar. Trust provisions – independent trustee of trust for spouse chosen by children with consent of family advisor, Page SI-34-KS.
LINK
Grantor Trust Provisions — Trust Protectors
Furnished by Fellow Richard S. Scolaro
Appointment and succession of trust protector.
LINK
Issues In Drafting for Trust Protectors
by Alexander A. Bove, Jr.
“The Protector: Trust(y) Watchdog or Expensive Exotic Pet?”
LINK
Perpetual Trusts: Dynasty or Disaster? Will Beneficiaries Be Happy Campers Or Plaintiffs?
By Thomas P. Sweeney and Malcolm A. Moore
1999 Fall Seminar. Draft trust provision allowing the trust protector to instruct the trustee to combine the assets of shares, Page 27-TPS. Power to the distribution advisor to instruct trustee to terminate the trust or any share thereof, Page 28-TPS.
LINK
Trust Protection
“Specialized Trust Provisions”
by Robert H. Kroney.
Discusses the use of trust protectors.
LINK
Your Exemptions Have Been Disconnected. Do You Know Where Your Exemptions Are and How They Got There?
By Ellen K. Harrison and Thomas E. Peckham
Summer 2004 Seminar. Provision to give a trustee or protector broad powers of amendment, Page SII-59-TEP/EKH.
LINK
2. Independent or Special Trustees
Independent and Special Trustees
Independent and Special trustees may be used to vest certain dispositive and administrative powers in the hands of persons who will not be deemed to possess a general power of appointment or to be acting in discharge of an existing obligation of support. The powers exercisable by such Trustees can be used to virtually rewrite the dispositive terms of the trust instrument. From the Gallo & Hilker sample Forms.
LINK (See #13)
3. Delegation & Coordination Among Trustees
Coordination Between or Among Fiduciaries
Estate plans frequently involve multiple fiduciaries: the client’s Executor; the Trustee of a revocable trust, if one is employed; possibly the Trustee of an irrevocable insurance trust; and possibly the Trustee of other irrevocable trusts established by or for the benefit of the client and his or her issue. If the plan includes minor beneficiaries, Guardians and Custodians may also be involved. From the Gallo & Hilker sample Forms.
LINK
Trustee Delegation
Trust agreements appointing multiple Trustees may create administrative nightmares if one of the Co-Trustees is unavailable to act. This problem may be addressed through a properly drafted delegation clause in the trust instrument. From the Gallo & Hilker sample Forms.
LINK
4. Trustee Incapacity, Resignation, Removal & Appointment
Perpetual Trusts: Dynasty or Disaster? Will Beneficiaries Be Happy Campers Or Plaintiffs?
By Thomas P. Sweeney and Malcolm A. Moore
1999 Fall Seminar. Draft trust provision re removal or resignation of trustee, Page 18-TPS.
LINK
Trick or Treat – The Importance of Selecting the Appropriate Fiduciaries
By Kimbrough Street
Fall 2003 Seminar. Will provision – choice of trustee by executor, Page SI-39-KS. Independent trustee of trust for spouse chosen by children with consent of family advisor, Page SI-34-KS. Firm partner as trustee, firm names successors, Page SI-37-KS. Each independent trustee names successor Page SI-38-KS.
LINK
Trustee Changes
How are Trustees appointed and removed? How does a Trustee resign? Must successor Trustees investigate the actions of the predecessor Trustee who has died, resigned or been removed? From the Gallo & Hilker sample Forms.
LINK
5. Exculpation
Exculpation Provisions for Trustee
by Robert H. Kroney
From “Specialized Trust Provisions”
LINK
6. Trustee Powers & Limitations
Candidates for the Frying Pan – Practical Considerations for Individual Trustee Selection and Succession
By Kimbrough Street
Fall 2003 Seminar. Trust provisions – independent trustee of trust for spouse chosen by children with consent of family advisor, Page SI-34-KS. Firm partner as trustee, firm names successors, Page SI-37-KS. Each independent trustee names successor, Page SI-38-KS.
LINK
Grantor Trust Provisions
Furnished by Fellow Richard S. Scolaro
Trustee powers and technical provisions.
LINK
Perpetual Trusts: Dynasty or Disaster? Will Beneficiaries Be Happy Campers Or Plaintiffs?
By Thomas P. Sweeney and Malcolm A. Moore
1999 Fall Seminar. Draft trust provision on limitations on trustee’s powers, Page 20-TPS. Provision re trustee’s limited power to amend, 22-TPS. Trustee power to apply the net inome and principal of Share A for the support and maintenance, etc., of the trustor’s issue, Page 29-TPS. Trustee authority to modify and amend the trust agreement to make sure it complies with provisions of the RAP, Page 29-TPS.
LINK
UPIA, Unitrusts & UTOPIA – Distributions to Beneficiaries in the Brave New World of Total Return
Provision that the trustee may act in its sole, absolute and uncontrolled discretion & broad discretionary power with no standard for distribution, Page 11-EJB.
LINK
VALUATION
1. Section 2032A
Drafting for Section 2032A Assets
“ACCOMMODATION OF CODE SECTIONS 2032A AND 2057 ASSETS”
by Jerold I. Horn.
Presented at the 2003 summer meeting of the Estate & Gift Tax Committee.
LINK
Special Use Value [drafting suggestions]
“Qualified Family Owned Business Deduction and Special Use Value”
by Donald H. Kelley.
LINK
2. Conservation Easements
3. Agricultural/historical preserves
4. Timberland
5. Section 2057
Drafting Documents for §2057
By Terence Doyle
Analysis of §2057 drafting with suggested provisions for wills and trusts.
LINK
WILLS
1. Simple Will Without Trust
2. Pour-Over Will
Validity of Testamentary Pourovers
Study 2: Compiled by Richard H. Pershan.
ACTEC Studies (See Study #2)
3. Will with Testamentary Trust or Life Estate
Practical Advice for Common Problems: Planning for Pre- and Post-mortem Distributions from IRAs and Qualified Plans
2004 Annual Meeting, Seminar E. Sample language giving value of a life estate outright.
LINK (See Page E-12-JTB)
4. Waiver of Priviledge
Waiver of Priviledge of Executor, Trustee or Attorney
Information as to the decedent’s intent and capacity and problems in will or trust administration and reform. From the Gallo & Hilker sample Forms.
LINK (Scroll down to “17. WAIVER OF PRIVILEGE OF EXECUTOR, TRUSTEE, OR ATTORNEY”)
5. Formalities and Execution
Planning in Anticipation of Litigation
2001 Annual Meeting–Seminar H. California Will Attestation Clause, Page H-29-BS/BSR.
LINK