Estate Planning, Probate & Elder Law Attorneys

» Web sites deal with digital assets after we die

Karin Prangley, an estate-planning attorney in Chicago, became an expert on post-mortem online assets after experiencing first-hand such complications.

» Trust-Administration Agreements

Setting up a trust can be a pretty effective way of avoiding expensive and public court proceedings (which are necessary in a probate situation). But sometimes problems arise with a trust, problems where a court proceeding may be needed. Settlements are always a possibility, but there's been some confusion in the past about how you work out a settlement, especially when not all parties are of age (or even born).

Due to an amendment to the Illinois Trusts and Trustees Act, there may be a new solution. Lyman Welch and Susan Bart describe the amendment in this Illinois Bar Journal article (it's from November of '09, but I just read it, so it's new to me!). The amendment adds section (d) to 760 ILCS 5/16.1. Some situations in which you may be able to use 16.1(d) to enter into a "nonjudicial settlement agreement":

-interpretation or construction of trust terms;
-resignation or appointment of a trustee; and
-exercise or nonexercise of a power by the trustee.

There are other situations outlined in the article, which I highly recommend.

» 5 Things You Need to Know About the Estate Tax in 2010: #2 (Retroactivity)

Perhaps I am getting ahead of myself -- I have been assuming that we will not have a federal estate tax for 2010. It's possible that Congress might get its act together and actually pass an estate tax bill in 2010 that applies for both 2010 and the future. This is what I've always thought would happen (naive me) -- maybe permanently setting the exemption at $3.5 million.

But this raises the question of what happens with individuals who die in 2010 before the new law, reinstating the estate tax, passes. Could such a law be made retroactive?

Probably. The Supreme Court previously stated (in Carlton v. United States, 512 U.S. 24 (1994)) that a retroactive law is valid under the Constitution if (1) the government shows that the statute has a rational legislative purpose and is not arbitrary and irrational; and (2) the period of retroactivity is "modest." (In Carlton, the "modest" period of retroactivity was 14 months.)

That being said, there is some caselaw indicating that the result might be different if the Supreme Court views this law (estate tax reboot? estate tax 2.0?) as a "wholly new" tax or as simply fixing something in an existing tax (the Carlton case mentioned above involved closing an estate tax loophole).

You may want to take a look at this article on Gideon Alpert's excellent Gay Couples Law Blog for a bit more information on this topic.

» Keep Your Business and Personal Finances Separate
Peel the two away from each other--and avoid tax headaches--with these 4 tips.

» Baby Ita s Cold Outside, Better Call Your Estate Planner

It's cold here in Philadelphia on this last Friday in January, and some spouses may feel they've been left out in the cold if the federal estate tax is not reenacted and applied retroactively in 2010.