Estate Administration

January 22, 2021

What Ochse v. Ochse Means for Trust Planning

In the November 2020 case of Ochse v. Ochse, a Texas court heard a case that could potentially have a ripple effect on how trusts are interpreted. In this case, a mother established a trust that provided the trustee was authorized to make distributions to both the trustee’s son as well as the son’s spouse. At the time the trust was executed, the son was married to his first wife, but later divorced and married a second wife. The son’s children then initiated legal action against the son for breaching fiduciary duties as trustee and joined with the first wife who is also the mother as necessary parties. The first wife and son then filed competing summary judgment motions addressing whether the first or second wife was the son’s “spouse” as referenced in the trust. The trial court then held that the second wife was the correct beneficiary at the time of the suit. The first wife subsequently appealed.

What the Case Involved

The second wife and son argued that the use of the word, “spouse”, in trust documents did not mean the first spouse’s actual name. Instead, these parties argued that the term referred to the class of whoever was currently married to the son. The court of appeals, however, disagreed. The first wife argued that in the absence of contrary intent, a gift to a “spouse” of a married individual must be construed to mean the spouse at the time of the document’s execution instead of a future spouse. The first wife further argued that the terms “primary beneficiary’s spouse” as well as “son’s spouse” referred to the first wife because she was the son’s spouse at the time that the trust was executed. Both interpretations requested the court to view spouses as either statuses or class gifts.

January 20, 2021

Lessons Learned After IRS Proposes User Fee for Estate Tax Closing Letters

by Ettinger Law Firm

Executors as well as the personal representatives of estates can be held personally liable for either applying or distributing estate assets when there are unpaid estate taxes owed in case the Internal Revenue Service is not paid. When estate tax returns are not filed, the final amount of estate taxes due is not determined until either the statute of limitations expires or an audit occurs. Consequently, estate fiduciaries are left uncertain about whether or when an adjustment to estate taxes will occur if the Internal Revenue Service has accepted an estate tax return as filled.

This type of response is unfair to both fiduciaries and beneficiaries because the most fiscally responsible fiduciaries can hold back on distributions until the amount taxed is more certain. To assist fiduciaries in assessing whether tax is due, an estate tax return is filed with the IRS. These returns are often issued following review by the Internal Revenue Service and a decision about not to audit or following the completion of post-audit procedures or litigation.

The Role of Estate Tax Closing Letters

March 22, 2020

Advice on Performing a Retirement Review

by Ettinger Law Firm

Many people think that retirement involves doing nothing. In reality, if you want to make sure that you avoid legal and financial complications, substantial consideration must be made during the retirement period. This involves handling Medicare issues, filing for Social Security, and navigating tax and distribution-related nuances. This article reviews some important issues to consider when reviewing retirement issues.

# 1 – Aim for a 5% Return

Even people with a large amount of savings discover that they end up having much less after paying withdrawal taxes. The best way to plan around taxation issues is to aim for a return of about 5% from your investments. While it can be tempting in retirement to focus on a conservative portfolio of assets, it is in most people’s best interest to diversify their portfolio.

December 13, 2019

Exemptions to the Bankruptcy Marital Exception

by Ettinger Law Firm

In the United States, married individuals almost always receive assets from their spouses without paying estate tax. One exception is the often-overlooked law involving marriage between a citizen of the United States and a foreign national. If you find yourself in this situation, it can create a unique challenge during estate planning.

The Foreign National Exception

Under federal law, if an American citizen is married to a foreign national and the first to die in the couple, the surviving foreign national is prohibited from using the standard marital deduction to inherit property. If the couple lives in the United States, the entire asset is subject to this regulation. If the couple lives overseas, however, only US-based assets are impacted by this law.

November 22, 2019

How is Inheritance Tax Different from Estate Tax?

by Ettinger Law Firm

Many conversations mention estate and inheritance taxes together, but there are some substantial differences between these two things. Both these taxes, however, have one thing in common: not everybody pays them.

As a result, it is a wise idea to begin by deciding whether you will be required to pay either of the taxes.

Is Inheritance Taxable?

November 20, 2019

Advice on Handling Specific Bequests in Wills

by Ettinger Law Firm

The Supreme Court of Montana recently affirmed a judgment by the district court distributing assets from a trust established by a husband and wife to the couple’s three children.

The district court had interpreted the trust creator’s handwritten codicil as a wish and not a specific bequest of the woman’s stock in a company that the couple had created and grown. Before the husband’s death in 1993, the couple executed identical wills under which the assets of the first spouse to die passed into a trust with the assets in the trust intended to be distributed equally between the three children of the surviving spouse.

As a result of the Supreme Court’s decision that the codicil was lacking in testamentary intent to specifically devise shares, this specific bequest was not passed on.

November 15, 2019

Important Estate Planning Steps to Take after a Parent’s Death

by Ettinger Law Firm

Losing a parent is not easy. While being prepared for the event might not make the emotional aspect any easier, it can help to eliminate the potential for additional problems. As a result, this article reviews some of the important financial steps that you can take after a parent passes away.

# 1 – Determine if Your Parents Had an Estate Plan

The position of managing a parent’s estate after their death can be made much easier if a parent had an estate plan. Ideally, a parent will organize all of their estate documents in an easy to find but secured location. The best estate plans include wills that address how assets should be handled, dispositions of last remains regarding how a parent’s remains should be disposed of, and several other documents.

October 10, 2019

Issues to Consider before Creating a Living Will

by Ettinger Law Firm

Creating a living will is one of the areas of the estate planning that many people overlook. These documents, which are also sometimes referred to as advance health care directives, describe what types of life-prolonging measure an individual would like if they are placed on life support.

Among other reasons why these documents are overlooked is that making decisions about these issues can be emotionally difficult for people. If you have decided to finally take the valuable step of creating a living will, it is a wise idea to ask yourself some critical questions.

The Worth of Creating a Living Wills

September 9, 2019

Important Details You Should Know about Federal Estate Tax

by Ettinger Law Firm

The federal estate tax is a tax that is placed on a person’s estate after death.

While many people are familiar with this general concept, they have a number of more specific questions about what the federal estate tax does and does not include.

For one, many people confuse estate taxes with income taxes. One difference between these two is that estate taxes are not a tax placed on a person’s income.

March 13, 2019

Are Electronic Wills the Wave of the Future?

by Ettinger Law Firm

Electronic wills have the option of providing a variety of important benefits to individuals who are interested in the estate planning process. Considering the tendency of many individuals to delay issues related to estate planning, electronic wills provide individuals with an opportunity to quickly create a legal document that decides how their assets should be divided following their death.

Weaknesses in Electronic Wills

There are some dangers that exist in using an electronic will, which must be addressed before these wills are capable of being used before individuals. A skilled estate planning attorney, however, is often able to help individuals navigate these various issues which include the following: