Legacy Planning, Once Removed

This podcast often discusses the elements of a trust, and how to grant access, control and flexibility to beneficiaries and trustees. But for tax and other purposes, the donor typically cannot retain those kinds of powers.

Interestingly, the donor often can set up a trust for the benefit of a spouse, and grant the spouse that kind of access, control and flexibility — Episode 11 discussed that concept, the spousal lifetime access trust or SLAT. A popular scenario involves each spouse setting up a SLAT to benefit the other spouse or others.

However, such transfers should be carefully structured to avoid the “reciprocal trust doctrine” and to ensure the transactions are respected. This episode discusses key principles of the reciprocal trust doctrine, lays out problems that can arise when setting up multiple trusts, and offers tips on the best way to create such trusts.

The beginning of the year is a good time to think about annual gifts to descendants and other beneficiaries. Episode 17 will walk through some options to make efficient use of annual gifting and also address some potential pitfalls.

Summary and transcript: https://media.mcguirewoods.com/events/2024/Legacy-Planning-Once-Removed-Ep17.pdf

In previous episodes, we discussed the exemptions that apply for gift, estate and generation-skipping transfer tax. Many of these exemptions are adjusted for inflation each year. In Episode 16, we’ll review those exemptions and the adjustment for inflation in 2024, and we will look ahead to some potential changes in the law at the end of 2025.

Summary and transcript: https://media.mcguirewoods.com/events/2024/Legacy-Planning-Once-Removed-Ep16.pdf

For this podcast and in general, we think a lot about wealth and the transfer of wealth. Of course, we should define “wealth” broadly, to include not just money and property, but also relationships, values, history and wisdom. On this podcast in particular, we talk about ways to transfer wealth to encourage and foster the right kinds of values and behavior, rather than enabling the worst kinds. This is a difficult and complex process.

In this episode, Steve explores one type of person, whom he calls the “rich relative,” who seems to do a great job of sharing wealth — including money and wisdom — in a positive way. He discusses the concept of the “rich relative” and this person’s approach to sharing of wealth, and what the rich relative’s playbook might teach us about the opportunities and pitfalls of transferring wealth.

Celebrities Ashton Kutcher and Mila Kunis recently made the news with their comments about their estate planning. They plan to give all of their money to charity upon their deaths, as part of their plan to raise well-adjusted kids. In this episode, Steve unpacks the comments they have made about their estate plan. He identifies some opportunities and pitfalls, and he distills some lessons others can consider in structuring their own estate planning to achieve their goals.

If you had to say where your will is located right now, could you? Despite the importance of that document, many clients are not sure where the original is located. In this episode, Steve discusses the case of Aretha Franklin’s will, and how the location of her will led to uncertainty and litigation regarding her true intent. In that case, two potential wills of Franklin’s were found in two separate locations, and the jury had to determine which one was her true last will and testament. This case is a cautionary tale in many ways, but it especially highlights the need to store original documents in the proper place. Tune in for tips on where to store your will, who else should know its location, and how you can keep track of that information throughout your life.

Steve Murphy, chair of the private wealth services group, dives deeper into the subject of SLATs in this episode. SLATs can work well with estate tax benefits and creditor protection benefits, all while giving the spouse access, flexibility, and control. But in the event of death or divorce, suddenly some of those advantages evaporate. To explain this, Steve explores the case of McKim vs. McKim, which presents a challenging situation where the husband set up a SLAT with his wife as beneficiary and trustee however, they divorced.

Steve Murphy, chair of the private wealth services practice group at McGuireWoods, discusses the Spousal Lifetime Access Trust, also known as the SLAT. Steve explains the rights that your spouse can have in this trust through the categories of access, flexibility, and control. And it is ultimately up to you, the client, to determine what level of access, flexibility, and control you would like to give your spouse as you draft a SLAT.

In this episode, Steve discusses the importance of the rule-based power to remove and replace a trustee. He explores this topic through the Leo Kahn Revocable Trust case in Massachusetts. In this case, the settlor named three trustees, and one trustee eventually wanted to remove the other two. The trust, however, included provisions that prevented this action, which landed the matter in court to resolve potential ambiguity in the document. Throughout his discussion, Steve stresses the importance of the power to remove and replace trustees – and the importance of making this power as clear as possible.

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In this episode, Steve provides insights on selecting a trustee of an ongoing trust, who may be the beneficiary or a third-party trustee. Steve will explain the advantages and disadvantages of each option, in addition to the three categories of functions your chosen trustee will manage.

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