When the Estate Plan Goes South: Fiduciary Litigation – Beneficiary versus Trustee.

fiduciary litigationI know you have been hanging on my every word.  I know that you have been wondering what could I possibly be up to that is so important that I don’t have time for you.   I’m sorry.  I never intended to neglect you.  My only excuse is that litigation is taking up more and more of my time.

But Rob, I thought you were an estate planner!  What are you doing in litigation?   That’s an excellent question.

The answer is: Fiduciary Litigation.

What is Fiduciary Litigation you ask?  Another great question.

Well, lets start with what a fiduciary is.   Continue reading When the Estate Plan Goes South: Fiduciary Litigation – Beneficiary versus Trustee.

Trust Investment Advisor: You can ensure that your family’s relationship with your trusted Financial Advisor continues after you are gone.

Picking a trustee is no easy task.  Trustees have immense discretion.  Trustees can steal if nobody is watching them.  As my boss likes to say, there are no “Trust Police.”

Certain businesses are capable of serving as a trustee.  Many banks have trust departments.  There are also businesses known as “trust companies.”  Other companies specialize in investments and have associated trust companies.  Businesses that are qualified to serve as trustees are known as “corporate trustees.”  My firm has strong relationships with a number of these companies.  They are pros.

Most often, trusts are utilized after you are gone to control your money for your spouse and/or children.  I frequently encourage clients to consider corporate trustees, particularly when the client does not have a relative or friend that they feel absolutely comfortable with naming as a trustee.

But what happens to your trusted financial advisor after you have passed?  Your advisor that you have established a relationship with and trusted with all of your deepest secrets…  Your advisor that knows your family through and through…

Continue reading Trust Investment Advisor: You can ensure that your family’s relationship with your trusted Financial Advisor continues after you are gone.

Koch Brothers and Norquist Zero in on the Tennessee Hall Income Tax

TargetAccording to the Tennessean, a number of groups have set their sights on the repeal of Tennessee’s Hall Income Tax—even enlisting more than 90 legislators by having them sign pledges.  These groups include the Tennessee Chapter of Americans for Prosperity, Americans for Tax Reform and the Tax Foundation.

Whoa, wait—Tennessee income tax? That’s right, Tennessee does have an income tax.  The Hall income tax is a tax that Tennesseans pay on dividends and interest.

Although many legislators have signed on to repeal, unless and until Tennessee solves its revenue problem, it seems unlikely that the tax is going anywhere.  That being said, many professionals said the same thing about the Tennessee Gift and Inheritance Taxes.  The Tennessee Gift Tax was repealed in 2012 and the Tennessee Inheritance Tax has been gradually repealed through 2016.

Stay tuned.

Rob Malin

Thank you to Justin Carter, CPA of the Marston Group for bringing this to my attention.

Divorced? It is time to update…

soapboxLet me guess.  The last person you want to see after a divorce is me, another dad-gum lawyer.  I don’t blame you.

However, before you say that, know this: your designated beneficiary did not change just because you got a divorce.  Here I am referring to life insurance, retirement accounts such as 401(k)’s and IRAs, and anything that allows you to name a beneficiary.  If you did not change your beneficiaries after you got a divorce, then your ex-spouse probably gets everything if something happens to you.

In both Arkansas and Tennessee, provisions to an ex-spouse are revoked.  This is not the case in Mississippi.  In Mississippi, the provisions for the ex-spouse remain and he or she takes whatever you may have left them—perhaps everything.

No matter where you live, it is still time to revise your Will.  Had a knowledgeable probate judge not been on the bench when Lorenzen Wright’s ex-spouse walked into probate court with his Will that left her everything, she might have been appointed in control of his estate.  In fact, she tried.  Order opening estate of Lorenzen Wright

Now you’re thinking (perhaps cynically)—there’s nothing left to get. Ok. Even if that’s true now, that may not be true five or ten years from now.

When will you update if not now?

Its time for an update.

Stay Tuned.

Rob Malin

What is a Revocable Living Trust?

Excellent question.  I’m glad you asked.

Broadly speaking, in estate planning there are two types of trusts: revocable and irrevocable.  This post will address revocable trusts.

Revocable trusts are also known as living trusts.  The short answer is that a revocable trust is a Will substitute.  For the most part, after death the same things can be done with revocable trusts as can be done with Wills.

The real difference between a revocable trust and a Will is that to function properly, a revocable trust must actually own your assets (or be named as a beneficiary).  In this sense, revocable trusts are like personal holding companies.  A good analogy is thinking of a public company such as FedEx.  FedEx owns planes and numerous other assets.  FedEx has shareholders and a CEO named Fred Smith.  During your lifetime, you are the CEO (or trustee) of your trust.  You are also the founder (known as either grantor, trustor, or settlor) and the shareholder (or beneficiary).

Continue reading What is a Revocable Living Trust?