I previously wrote about Estate of Blount v. Commissioner, 428 F.3d 1338, 1339 (11th Cir. 2005) – an 11th Circuit estate tax valuation case  – in which the court held that in the context of a buy-out agreement funded by insurance proceeds, the insurance funds should not be counted when estimating the company’s fair market value.  In a recently published article, Prof. Adam Chodorow (Associate Professor – Arizona State College of Law) argues that the 11th Circuit got this one wrong.  The SSRN abstract of his article, entitled Valuing Corporations for Estate Tax Purposes: A Blount Reappraisal, is as follows:

Abstract:
Valuation issues have long been the bane of the estate tax. In addition to the basic problem of valuing property in the absence of a market transaction, taxpayers routinely engage in tactics specifically designed to suppress the value of their property for estate tax purposes, without actually diminishing the value of the property itself.

This article explores a recurring issue of asset valuation, which the Eleventh Circuit purported to resolve in Estate of Blount v. Commissioner, 428 F.3d 1338, 1339 (11th Cir. 2005), namely how to value a corporation where the corporation is set to receive insurance proceeds on account of a decedent’s death, but where those proceeds are offset by a corresponding obligation to redeem the decedent’s shares. Both the Eleventh and the Ninth Circuit (the only other court to consider this issue) concluded that insurance proceeds and redemption obligations offset, and therefore insurance proceeds should be excluded from corporate value. I argue here that, despite the superficial appeal of their holdings, both courts are, in no uncertain terms, wrong. Rather, insurance proceeds must be included in corporate value, and any redemption agreement must be ignored. 

Lawsuits against trustees are on the rise.  That is the conclusion to be drawn from the following statistic, as reported in the on-line article entitled How Not to Get Sued:

[L]awsuits and arbitration cases concerning breach of fiduciary duties are increasing at a compound annual rate of 22 percent, according to an analysis of NASD figures by the Center for Fiduciary Studies, of Sewickley, Pa.

The linked-to article goes on to address key strategies for avoiding trustee lawsuits, which are encapsulated in the following 4 bullet points:

  • Know the client’s risk tolerance
  • Serve the client’s needs
  • Keep careful records
  • Be particularly careful to document anything unusual

The Society of Fiduciary Advisors has also published its BEST PRACTICES FOR INDIVIDUAL INVESTORS, which provides excellent risk-management guidance for trustee/investment advisors.

I previously reported here on the often-quoted statistics suggesting that baby boomers will reap a mega-windfall of trillions of dollars – one of the largest intergenerational transfers of wealth in history – as their parents, the WWII generation, passes away.  Well, it’s not that simple.  Demographic trends and increased wealth disparities in the U.S. are deflating the inheritance expectations some baby boomers may have been banking on.   The following are excerpts from an article entitled For boomers, not-so-great expectations of a windfall, making the following sobering points:

Longevity, with resulting long-term care and health costs, is at the root of diminishing inheritances, but there are numerous other factors:

Fewer traditional pensions to fund longer lives.

Reverse mortgages that allow the house asset to be “spent” before death.

An inheritance pie that must be split among an average of 3.3 boomer children and the grandchildren – not to mention charities and alma maters.

Active older adults choosing to use their money to enjoy retirement.

*     *     *     *     *
Even Paul Schervish, who co-authored the oft-quoted research predicting the huge wealth transfer, says most Americans shouldn’t count on a mega-inheritance to bail them out in retirement.

About 40 percent will go to estate taxes, fees and charity, said Schervish, director of Boston College’s Center on Wealth and Philanthropy.

After that, mostly the children of the rich will benefit, with the wealthiest 7 percent of estates spinning off half the money to heirs.

The remaining 93 percent of heirs will divvy up the rest. “They’re not going to fund their retirement on that,” Schervish said.

In trust litigation the identity of the trustee (i.e., individual vs. corporate, inexperienced vs. professional) has a large impact on how the case is handled.  Prof. Melanie B. Leslie (Professor of Law, Cardozo Law School) has recently published an interesting article addressing the different standards of care that are (or should be) applied to professional trustees in light of the fact that many jurisdictions, including Florida, have adopted the Uniform Trust Code, which some view as overly protective of corporate trustees.  The article is entitled Common Law, Common Sense: Fiduciary Standards and Trustee Identity, 27 Cardozo L. Rev. 2713 (2006).   The following is the article’s SSRN abstract:

Abstract:
The past twenty years have seen significant changes in the law governing trustees’ fiduciary duties. Though fiduciary duty law is a common law creation, recent changes are not a result of common-law evolution, but legislative action. The push to codify trust law, including fiduciary duties, has come from a few sources, including academics, who have argued that trust law should be more uniform, and banking institutions, who have pushed for legislation to ease the burdens of trust management.

In some significant respects, legislative changes to fiduciary duties have not improved upon the common law. In fact, a few important statutes have replaced theoretically sound common law standards with rules that undermine the historical objectives of trust law. In some instances, scholars have justified changes by claiming that they are necessary to protect the non-professional, poorly counseled trustee. But, by and large, it is the large, institutional trustees who have benefited – significantly – from the statutory changes in the rules.

This article argues that recent statutes would be much improved if they differentiated between professional and non-professional trustees. There are critical distinctions between professional and non-professionals: differences in settlor’s expectations and objectives, negotiation settings, monitoring costs and the trustee’s response to liability rules. These distinctions justify having different fiduciary standards for different types of trustees.

Courts, with their case specific approach to rules, intuitively understand that the identity of the trustee should make a difference in assessing liability for breach of fiduciary duty. Either expressly or implicitly, courts gradually have developed two sets of rules. Thus, changing fiduciary standards to protect the non-professional was never really necessary.

In Florida, trustees and personal representatives have an affirmative statutory duty to keep trust and estate beneficiaries informed (see new Ch. 736 for trustees; 733.602 and 733.604 for PRs).  Additionally, being pro-active, let alone responsive, with respect to keeping everyone informed is probably the cheapest way to avoid getting sued by the beneficiaries, a point underscored in this newspaper article.  The following is an excerpt from the linked-to article:

Friday, August 18, 2006
By FRED CONTRADA
fcontrada@repub.com

AMHERST – When William J. Bernotas shot his estranged wife Jean Hosmer to death in front of the Northampton police station in 1999 and then turned the gun on himself, he left their two children orphans.

One of Hosmer’s sisters came forward to take care of Sandra and Kevin Bernotas, but their estate was entrusted to Amherst lawyer Nancy J. Sardeson.

Now the family has questions about how the estate has been managed and Sardeson has been suspended from practicing law for failing to provide the answers.

Conseco Ins. Co. v. Clark, 2006 WL 2024401 (M.D.Fla. Jul 17, 2006) (NO. 8:06CV462 T30EAJ)

Exploitation of the elderly is endemic.  This case provides a good road map for probate litigators involved in cases where the decedent was victimized by his or her power-of-attorney holder, with the facts coming to light in the context of probate proceedings.

If someone has taken the time to prepare estate planning documents, a power of attorney is usually part of the package.  But my sense is that the POA usually doesn’t receive the level of scrutiny is should — especially when it comes to retirees who move to Florida and detach themselves from the web of family and friends that looked after and supported them "back home."

The victim in this case was Anthony Jeski, who was 89 years old when he died in 2005 the resident of a Florida nursing home.  Myra Clark acted as Mr. Jeski’s power of attorney from 1997 to 2005.  Originally, the sole remainder beneficiary of Mr. Jeski’s seven annuity contracts (paying $342,177.58 at his death), revocable trust, which contained $40,000 at his death,  a Prudential insurance contract whose value was unreported, and the heir who would receive title to his $158,000 condominium, was Mr. Jeski’s nephew Joseph Dal Campo.  This all changed in 2002, when Ms. Clark used the power of attorney to write Mr. Campo out, and write herself in, as sole beneficiary of all of the annuity contracts, the revocable trust, the insurance policy, and last but not least, quit claim the condo to herself for $11.00.  Oh, and guess who was the agent that sold Mr. Jeski his annuity contracts?  Ms. Clark’s husband.

Confronted with this set of facts, litigation counsel for Mr. Campo could pursue a number of different strategies.  In this case, Mr. Campo pursued the following claims, all of which were essentially "blessed" by the trial court.

  • Breach of Fiduciary Duty.  Key point here was that the trial court held that Mr. Campo was an "interested person" with respect to his uncle’s power of attorney, and thus Ms. Clark owed him the same fiduciary duties applicable to trustees in Florida.
  • Fraud.  The trial court dismissed this claim, but hinted strongly that if the plaintiff could allege facts showing he had himself relied upon fraudulent statements made by Ms. Clark, then the claim could proceed.
  • Civil Conspiracy.  The trial court let this claim proceed.  Key point being that Ms. Clark’s husband was thus brought into the case as a named defendant.
  • Exploitation of an Elderly Person.  The trial court dismissed this claim with instructions to the plaintiff on how to replead the claim, hinting again that the judge was predisposed to let this count proceed.  This can be a very powerful weapon, because by statute the successful plaintiff is entitled to treble damages and his attorney’s fees.  See Counsel Beware: Considerations Before Implementing Florida’s Civil Theft Statute for a good summary of what trial counsel needs to know with respect to asserting these types of claims.
  • Tortious Interference with Expectancy.  The trial court let this count proceed with respect to all non-probate assets (i.e., everything except the condo).  This is an important weapon to keep handy when most if not all of the key assets in dispute fall outside of the probate court’s jurisdiction.

For an interesting non-Florida case dealing with legal and ethical issues surrounding the drafting of a power of attorney see In re Winthrop, 848 N.E.2d 961 (Ill. 2006), and a related discussion of the case in Helen Gunnarson’s article, POA Perils, 94 Ill. B.J. 403 (2006), in which she concludes as follows:

The complexity of the proceeding does . . . suggest that reinventing the wheel when it comes to drafting powers of attorney may be unwise. Even more important, an attorney would be well advised to exercise extra caution when a third party initiates a request for the attorney to draft an instrument for an elderly person.

In this article CNN.COM first reported on the guardianship litigation involving Brooke Astor, one of America’s most storied and prominent socialites, her only son and guardian, Anthony Marshall, and her grandson Philip Marshall, who is suing his 81 year old father for neglecting his 104 year old grandmother.  In a subsequent article reported here on CNN.COM, Anthony Marshall denies any wrongdoing.  Here is an excerpt from the first CNN.COM articles:

NEW YORK (AP) — She wears torn nightgowns and sleeps on a couch that smells of urine. Her bland diet includes pureed peas and oatmeal. Her dogs, once a source of comfort, are kept locked in a pantry.

A court filing alleges that this is the life of 104-year-old Brooke Astor, the multimillionaire Manhattan socialite who dedicated much of her vast fortune to promoting culture and alleviating human misery.

In addition to be very sad, this story is instructive: guardianship disputes can erupt in any case, no matter how wealthy the ward may be.  This point was underscored in  this New York Times editorial reporting on proposed federal legislation intended to address this issue.  Here is an excerpt from the NY Times piece:

The scandal over Brooke Astor’s care has had the healthy side effect of getting people talking about the needs of the elderly. The 104-year-old former socialite and philanthropist now appears to be getting the attention she needs. But it has inspired people to ask what is being done for old and “older old” people who have no Rockefellers or Kissingers to come to their defense.

Last week the Senate Finance Committee unanimously approved a bill that would expand the federal system for protecting the elderly from physical, psychological and financial abuse. A second crucial measure, the reauthorization of the Older Americans Act, is also being considered by Congress. Important aspects of both bills — like the people they seek to protect — are in danger of sinking beneath the radar as other matters move ahead on the priority list. We’re hoping all the publicity over the alleged mistreatment of Mrs. Astor by her son will change that.

In almost all estate litigation cases attorneys’ fees become an issue.  This law.com article shines the spot light on one case in particular because Greenberg Traurig, one of the country’s largest and well known law firms, is involved.  But the issues in dispute are part and parcel of almost all such litigation — which means parties need to anticipate them and plan accordingly.

Here are excerpts from the linked-to story:

Greenberg Traurig has become enmeshed in a bitter family feud between two sisters, one of whom is married to a senior partner at the law firm.

The estranged sisters, Linda J. Spector and Barbara Berlin, had both been named beneficiaries of a trust created in November 2003 by their mother, Eleanor Spector. Eleanor and Linda served as co-trustees until Eleanor’s death in January 2004.

Shortly after her mother’s death, Linda sought to have her then-fiancé, Albert Jacobs, the senior chair of Greenberg Traurig’s national intellectual property practice, appointed co-trustee, arguing that the successor designated in trust, attorney Joel Sankel, had told her over dinner he would step aside.

*     *     *     *     *

Greenberg Traurig billed the estate almost $130,000, which is now at issue in a pending contempt motion. Sankel claims the amount should be repaid to the trust since Greenberg Traurig’s services were retained for the personal benefit of Linda Spector and Jacobs, whom she eventually married.

In the contempt motion, Sankel also noted the disparity between the fees paid to Greenberg Traurig and his own firm in the course of the dispute. He noted that his firm had billed the trust $22,000 in the same time period. He is requesting invoices from Greenberg Traurig to back up charges, some of which he claims were "wholly frivolous."

The Probate and Trust Litigation Committee will be meeting from 10:30 a.m. to 12:15 p.m. on Thursday, August 10, 2006, at The Breakers on Palm Beach, Florida, in conjunction with the Real Property, Probate and Trust Law Section’s Executive Council meeting.  Committee Chair Jack Falk circulated two emails, which contain detailed memoranda addressing several legislative items that should be especially interesting to probate litigators.  Even if you have no intention of attending, the committee materials alone are worthwhile reading.

The following materials have been circulated for the meeting:

To read Jack’s emails simply click the "Continue Reading" button below.

Continue Reading Probate and Trust Litigation Committee Meeting

As reported by the New York Times in Wage Bill Dies; Senate Backs Pension Shift, efforts to repeal the estate tax were blocked in the Senate for the third time this year.  Here is an excerpt from the linked-to story:

WASHINGTON, Aug. 3 — Senate Democrats on Thursday blocked legislation tying the first minimum wage increase in almost a decade to a decrease in the federal estate tax, denying Republicans a legislative victory as lawmakers head into a crucial month of campaigning before the November elections.

Republican backers of the measure, dubbed the trifecta for its three chief elements, fell 4 votes short of the 60 needed to cut off debate. Democrats had argued that it was a bad bargain to exchange a $2.10 wage increase for struggling workers for a costly tax cut for the country’s wealthiest families.

“This trifecta is a high-stakes gamble with America’s future,” said Senator Richard J. Durbin of Illinois, the Senate’s No. 2 Democrat. “This is the worst special-interest bill I have seen in my time in Congress.”

Scrambling to complete its business and join the House in an August recess, the Senate also approved and sent to the president a major overhaul of pension law as Republicans sought to record some last-minute accomplishments.

But the failure of the bill linking the wage increase and the tax cut was a significant defeat for Senator Bill Frist, the majority leader entering his last months in the post. Mr. Frist had hoped to steer the measure through the Senate, partly with the help of an accompanying series of tax incentives and federal aid to woo lawmakers.

Mr. Frist and his allies in business viewed the wage increase, stretched over three years, as an acceptable trade-off for a permanent reduction in the estate tax and $38 billion in tax breaks and federal aid that constituted the third part of the measure. But they could not overcome intense opposition from Democrats and organized labor.

The You and Yours Blawg has also posted on this latest vote (see Estate Tax Repeal Vote Down Again (3rd time the charm?)).

Undeterred by failing to get its way via the democratic process, the Bush administration has simply fired almost half of all of the IRS’s estate tax auditors in what has been dubbed the "back door" approach to estate tax repeal (see IRS Cans Elite Auditors, Undermining Estate Tax).