Attorneys faced with elderly clients sliding into incapacity grapple with daunting ethical challenges. For family members helplessly watching from the sidelines as an elderly parent’s financially exploited, the emotional toll is way worse. And these are not isolated incidents. According to AARP, “in 2017 alone, reports of suspicious financial activity involving older folks totaled $1.7 billion. There were 63,500 reports that year, four times as many as in 2013, according to the CFPB,…

I recently spoke on Florida’s statutory authorization of electronic wills and it got me thinking once again about how consequential — or not — this legislation really is. Spoiler alert: as a practical matter, I think it was much ado about an interesting idea that’s likely to see very little real world application. Backstory: In 2017, the Florida Senate voted unanimously to authorize electronic wills. Was that the end of the story? Nope. Former Gov.…

Ever wonder why we don’t spend much time thinking about the income tax consequences of an inheritance? Well, there’s a simple reason for that. According to IRC § 102(a), “the value of property acquired by gift, bequest, devise, or inheritance” is excluded from gross income, which means it’s not subject to income tax. On the other hand, IRC § 102(b) tells us the income I receive on inherited property (as opposed to the underlying…

If you’re working with the trustee of an irrevocable trust that needs fixing for some reason, your first thought should be to simply re-write the thing by using F.S. 736.04117, Florida’s trust “decanting” statute. Decanting allows you to re-write an irrevocable trust agreement by figuratively pouring the assets from the old trust into a new trust (like decanting a bottle of wine, get it?). And to make a good thing better, our decanting statute…

Irrevocable trusts stay “irrevocable” only as long as everyone with a stake in these trusts wants them to stay that way. They’re products of private law, which means there’s no “trust police” walking the beat making sure they don’t get tinkered with. And sooner or later, they all get tinkered with. Bottom line, if everyone’s in agreement, no irrevocable trust is impervious to modification or termination. Same goes for removing trustees of irrevocable trusts or…

One of the most confoundingly difficult challenges we all face as trusts and estates attorneys is what to do if a client’s cognitively declining or otherwise impaired in a way that is clearly affecting his or her decision making. The two most common scenarios for how this dilemma plays out in real life are: (i) elderly estate planning clients slowly sliding into dementia, and (ii) cognitively impaired adults in contested guardianship proceedings. The core question…

  If you’re a trusts and estates lawyer, you’re in the business of making sure people get a say in what happens with their stuff after they’ve died — even if there are a lot of living people who aren’t at all happy with what the dead guy wanted. Giving preference to the wishes of the dead is what estate planning is all about. It’s legal, but is it “moral”? It’s not like you’re going to harm…