heckerling 2016 report no. 11 - american bar

Heckerling 2016

50th Annual Philip E. Heckerling Institute on Estate Planning

January 11-15, 2016 Reports No. 11

Heckerling 2016

University of Miami School of Law Center for Continuing Legal Education Orlando World Center Marriott Resort and Convention Center

Orlando, Florida http://www.law.miami.edu/heckerling

GENERAL INFORMATION ABOUT INSTITUTE: Inquiries/Registration: Philip E. Heckerling Institute on Estate Planning University of Miami School of Law Center for Continuing Legal Education P.O. Box 248087 Coral Gables, FL 33124-8087 Telephone: 305-284-4762 / FAX: 305-284-6752 Web site: www.law.miami.edu/heckerling E-mail: [email protected] Headquarters Hotel - Orlando World Center Marriott 8701 World Center Drive Orlando, FL 32821 Telephone (407) 239-4200, FAX (407) 238-8777 NOTICE: Although audio tapes of all of the substantive session at the Miami Institute currently are only made available to Institute registrants for purchase, the entire proceeding of the Institute other than the afternoon special sessions are published annually by Lexis/Nexis. For further information, go to their Web site at http://www.lexisnexis.com/productsandservices. The text of these proceedings is also available on CD ROM from Authority On-Demand by LexisNexis Matthew Bender. For further information, contact your sales representative, or call (800) 833-9844, or fax (518) 487-3584, or go to http://www.bender.com, or write to Matthew Bender & Co., Inc., Attn: Order Fulfillment Dept., 1275 Broadway, Albany, NY 12204. NOTICE: The content herein is to be used for information purposes only. Neither the Heckerling Institute nor the University of Miami represent or warrant the accuracy or completeness of the information contained in these Reports, and do not endorse the content. Moreover, the views expressed herein do not necessarily reflect the views of the Heckerling Institute or the University of Miami. In no event will the Heckerling Institute or the University of Miami be liable for any damages that might result from any use of or reliance on these Report. This reporting service is brought to you by the ABA-PTL Discussion List Moderators. The URL for the ABA-PTL searchable Web-based Archives is: http://mail.americanbar.org/archives/aba-ptl.html.

Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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Heckerling 2016

Heckerling 2016 – Report No. 11 As we have done for the last nineteen years, and again with the permission of the University of Miami School of Law Center for Continuing Legal Education, we will be posting daily Reports to this list containing highlights of the proceedings of the 50th Annual Philip E. Heckerling Institute on Estate Planning that is being held on January 11-15, 2016 at the Orlando World Center Marriott Resort and Convention Center in Florida. A complete listing of the proceedings is available at www.law.miami.edu/heckerling and was published as part of Introduction Part 2. We also will be posting the full text of each of these Reports on the ABA RPTE Section’s Web site, as we have since the 2000 Institute. Those Reports can now be found at URL http://www.americanber.org/groups/real_property_trust_estate/events_cle/heckerling_reports.html. In Addition, each Report can also be accessed at any time from the ABA-PTL Discussion List’s Web-based Archive that is now at URL http://mail.americanbar.org/archives/aba-ptl.html by registered subscribers to that list or by anyone at the List’s public archive at http://home.ease.lsoft.com/scripts/wa.exe?A0=ABA-PTL-PUB. =============================================================== Editor’s Comments: This Report contains Reports on Immigration and Citizenship Law, The Ethics of Protecting our Planning Clients, Trust design and Redesign, Scrutiny of the Trustee Selection, Wrap-Up: Practical Planning Strategies for the Future, and the Vendor Interviews. ===============================================================

The Prerogatives of Privileges: The Ethics of Protecting Our Planning Clients (Even From Themselves!) This session provided practical tips with some discussion on recent developments in audits and case law related to privileges applicable to estate planning, with a particular focus on planning with closely-held entities. Presenter: Stephanie Loomis-Price Reporter: Herbert L. Braverman Ms. Loomis-Price is from Houston in the 5th Circuit, so of course she is an expert in litigation matters pertaining to audits, transfer taxes and estate planning matters. She came to the Institute "to scare" us and she did so while carefully discussing some of the


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recent developments in the area of "privilege". As she noted, her emphasis was to make us understand that we should always be anticipating the potential audience for the items we and others prepare for our clients. The audience might include an IRS agent, its appeal office, its district counsel, a judge, a jury and, perhaps others (use your imagination). This whole area becomes even more of a briar patch for many of us because of the many types of communications that our high tech world now presents to all of us. With the face-to-face meeting fading quickly from our professional lives, the problems in this area abound. Ms. Loomis-Price reviewed the broad summons power of the IRS to seek documents or testimony from a taxpayer, his/her representatives or a third party, under appropriate circumstances. See IRC Sec. 7602(a). for some detail. Of course, a summons must have a legitimate purpose to seek relevant information to that purpose that the IRS does not already have in its possession and the summons must satisfy the administrative requirements of the US Code. Such a summons can be directed to the taxpayer, his/her attorney, accountant, other advisors, doctors, etc., making the summons a very powerful tool indeed. Of course, the taxpayer could file a motion in Court to quash a summons and the IRS can file a motion to enforce a summons. So, our presenter wisely points out that in addition to preparing for litigation virtually from the get-go in almost every matter you handle, it may also be helpful to have her at your side whenever the audit letter, etc., arrives. As always, proper preparation is key. She then turned to discuss those privileges that may keep documents, etc., from the IRS summons power. She noted four such privileges for us:

(1) the attorney-client privilege (2) the attorney work product doctrine (3) the tax practitioner's privilege (4) a variety of medical privileges.

The attorney-client privilege allows an individual to seek legal advice from counsel in confidence and to have a communication that will be open, honest, complete and protected from disclosure, unless the client chooses to waive this privilege. Ms. Loomis-Price pointed out that the privilege protects the communication, but not necessarily the underlying facts. The application of the privilege becomes complicated when the communication has a dual purpose (such as legal and business) or when the communicators are wearing dual hats (lawyer with a business function), since business advice is not protected in general. Tax advice, tax opinions, tax return preparation by attorneys presents a more complicated picture in many cases. Ms. Loomis-Price spent some time on behavior that amounts to an intentional or inadvertent "waiver" of a privilege. Think about Sec. 2036 cases, where the decedent is dead, but all the information is in your files (right)... Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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She then discussed the work product doctrine, which is a doctrine related to litigation matters. See Fed. R. Civ. P. 26(b)(3)(A)(B) for a brief definition of the doctrine. The doctrine may also protect the efforts of some non-lawyers working under the direction of an attorney preparing for litigation. One of the key questions is when did you start preparing for litigation; work done before that date and time probably will not be protected by this doctrine; furthermore, the doctrine is not universal. Work product may generate "facts" that will be discoverable by the Service, if the Service can show "substantial need" which like beauty is largely in the eye of the beholder. Ms. Loomis-Price spent some time on the physician-patient privilege, which is largely a state law, not a federal law, issue. It is recognized in some form in most states and may be helpful, particularly where mental conditions are in dispute. The tax practitioner privilege is similar to the attorney-client privilege, but only applies in non-criminal matters, an important distinction. See IRC Sec. 7525(a)(1) enacted in 1998 for more detail and there is quite a bit to consider here. Finally, Ms. Loomis-Price discussed the areas of hiring appraisers and doing so in a manner that will allow for the best protection for the appraisal process and its results as well as the so-called Kovel accountant. The latter relates to the many cases where an attorney needs the assistance of an accountant in a matter that is headed toward litigation. Doing the hiring and conducting the work in a proper manner will protect the work for the attorney from disclosure. See US -v- Kovel, 296 F 2d 918 (1961) and other cases citing this issue. In closing, Ms. Loomis-Price reminded us that the party asserting a privilege has the burden of proof that the privilege applies to the matter in question. ===============================================================

Session I-A: Make, Remake and Remodel—Trust Design and Redesign to Minimize Taxes and Maximize Family Wealth Robert A. Romanoff u Suzanne L. Shier Trust design and the modification of existing trusts can at once accomplish significant tax savings, preserve family wealth and accomplish a client’s nontax wealth planning goals. This presentation focused on the intersection of income tax, gift and estate tax, and non-tax objectives in drafting trusts and crafting strategies to modify existing trusts. Presenters: Robert A. Romanoff and Suzanne L. Shier Reporter: Herbert L. Braverman Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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This special session is a complement to the general session presented by Mr. Romanoff earlier in the Institute and reported fully in these reports. One must combine the two to get the full value of the information presented. In general, the point is that our estate plans are being drawn to last over longer periods of time, unlimited by the elimination of the rule against perpetuities and the ever increasing length of our lives and the lives of our family members. All of this in a legal, financial, tax, social and political world that changes more quickly and often more radically than ever before. The planner must be "decisively flexible" to help a client and his/her family cope with this fast changing world; that is the point of the presentation and the materials provided, which I certainly recommend to all. The presenters discuss making, remaking and remodeling trusts for our clients in a great variety of ways; just to mention a few of the areas covered--grantor or non-grantor trust and switching from one to the other when appropriate, income tax emphasis or estate tax focus, domestic or foreign trusts (global families in more than one country), defective trusts and corrective actions, trust location (situs issues, governing law, domicile), trust protectors, powers of appointment, trustee and other fiduciary liability, decanting, reformation, virtual representation, disclaimers, etc. Creating the proper plan and plan documents for today is important, of course. But, these presenters brought to mind the need for flexibility, continuous monitoring and unrelenting willingness to change plan details to fit the ever changing situation in which the plan documents will have to be administered over increasingly long periods of time. Consider their closing words: "Consider the years 1651, 2016 and 2381. A 365-year term dynasty trust created in 1651 would terminate in 2016. A 365-year term dynasty trust created in 2016 will terminate in 2381. In 1651, Medfield, Massachusetts was founded with 13 households and the West India Company founded what is now New Castle, Delaware. Isaac Newton was on his way to inventing the reflecting telescope. Who in 1651 could possibly have anticipated telephones, computers, internet, social media, airplanes, horseless carriages (now commonly known as cars), let alone driverless cars, or even electricity? How can clients or practitioners possibly anticipate what the world of the beneficiaries of a dynasty trust will be like in the 24th century? What will be their need or in their best interests in 365 years? In our world of routine disruption, trust design that is intentionally and decisively flexible is essential. As has been discussed in these materials, key areas to consider in the design or redesign of a trust include flexibility with respect to federal and state income taxation, gift, estate, and generation transfer skipping taxation, investment authorization and the inclusion and exclusion of beneficiaries. Trusts that are mobile and fiduciaries that are given discretion may most effectively navigate the changes in taxation, families and culture that are certain to come."


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Surely, you should obtain these materials--both the general session and this special session--for your own good. ===============================================================

A Deeper Scrutiny of the Trustee Selection Minefield This session explored the tax and non-tax factors that should be considered in order to avoid adverse surprises in making fiduciary appointments. Don’t blame the IRS (or others) if you aren’t paying enough attention to avoid the dangers! Presenters: Mark R. Parthemer and Edward F. Koren Reporter: Herbert L. Braverman This special section uses the same materials used by Mr. Parthemer in his general presentation earlier in the Institute, a session that has been fully reported at this time. I hesitate, of course, to cover the same material, which was largely repeated (and in some portions expanded) in the special session. Please see that report. In general, the presenters discussed the many non-tax factors in trustee selection, including for example legal capacity, situs selection issues, allocation powers, trust protectors, self-dealing transactions, permanence, fees, accounting, judgment, impartiality, sophistication, corporate qualifications, etc. Then, the presenters turned to donor and beneficiary tax factors in a wide variety of circumstances, all documented quite well in 200 pages of material that are recommended to your attention. For this purpose, I am setting forth for your consideration a list of 20 "Things you have to know about selecting Trustees and structuring the powers of Trustees" as suggested by Bessemer Trust:

1. Probe the appropriate selection of trustees for non-tax factors in our role as counselor. 2. Plan whether or not the transfer to the trust should be a completed gift (or not). 3. If the goal is to keep the asset out of the donor's estate, do not allow the donor to be a beneficiary, unless the trust is in a "self-settled trust" jurisdiction. 4. Be careful with having the donor serve as trustee if the donor has powers over distributions. 5. If the trustee's powers over distributions are not limited by a fixed determinable standard, prohibit any possibility of the donor becoming trustee or co-trustee.


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6. The donor can serve as trustee if there is a determinable external standard on distributions. 7. The donor can have administrative powers as trustee as long as the powers are subject to court control and fiduciary duties. 8. Do not give the donor-trustee either of two prohibited powers. 9. The donor can have broad trustee appointment and removal powers. 10. Avoid having foreign persons as 1/2 or more of the trustees. 11. Avoid or trigger the grantor trust rules, as desired. 12. If the beneficiary is trustee, use an ascertainable standard on distributions to OTHER beneficiaries. 13. Limit the beneficiary from serving as trustee if distributions to the beneficiary are not limited by an ascertainable standard. 14. The beneficiary can be given the authority as trustee to make distributions to him or herself if there is an ascertainable standard on distributions. 15. Restrict the trustee from making distributions that would satisfy the trustee's legal support obligations. 16. The beneficiary may have broad powers to appoint and to remove trustees (like the donor). 17. Having a beneficiary as sole trustee MAY result in grantor trust treatment as to the beneficiary (income tax issue). 18. Determine if the appointment of a trustee in another state will avoid or cause state income taxation on undistributed trust income and gains. 19. Use a savings clause. 20. Be wary of having a beneficiary as trustee with the authority to make distributions if there are any creditor concerns for the beneficiary.

Mr. Koren did not necessarily endorse all of the numbered ideas set forth above. ===============================================================


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Special Session III-E: Immigration and Citizenship Law and Related Tax Issues for Estate Planners Presenters: M. Read Moore, Michelle B. Graham, and Steve Trow Reporter: Kimon P. Karas This presentation included a discussion of interrelating immigration considerations as well as an overview of U.S. tax issues. For a more complete summary of tax issues see the discussion of the Wednesday, January 13, 2016, Fundamentals Program of Basic Estate Planning for Non-U.S. Persons and U.S. Persons with Foreign Connections. The presentation commenced with a general overview of the immigration rules. General rule in order to avoid becoming subject to one’s worldwide income is to avoid obtaining a green card. An individual with a green card is considered a resident alien and as such like a U.S. citizen is subject to U.S. income tax on worldwide income. One can avoid attaining resident alien status by staying below the ‘substantial presence’ threshold. The presenters discussed the various visa categories. Canadian citizens enjoy special privileges and do not need a visa if they don’t work in the U.S. and don’t stay in the U.S. for more than 6 months on a single visit and don’t stay in the U.S more than 6 months in the aggregate every 12 months. Visa waver program applies to citizens of approximately 38 countries by applying for a travel authorization for 90 days provided the person does not work in U.S. There is the TN visa under NAFTA for Canadian and Mexican citizens to enter the U.S. for employment in certain professional occupations. L-1 visa is used to transfer employees within multinational companies and between affiliated companies. E-1 and E-2 visas are available for treaty traders and treaty investors-for executives and entrepreneurs. An E-1 visa, is available for a citizen of a treaty country or his employer must be engaged in a substantial volume of trade which is principally (51% or more) between the U.S. and the treaty country. For an E-2 visa the applicant or his employer must have made, or be in the process of making, a substantial equity investment in a U.S. business. H-1 visa is available to applicants who have at least a bachelor’s degree (or equivalent work experience) and will work in an occupation where that degree is the normal minimum requirement for employment. O-1 visa is available to those with extraordinary ability-athletes, entertainers. J-1 visa is available for trainees, physicians pursuing graduate medical education or training, professors and scholars. In addition to a green card holder a resident alien also is one who meets the substantial presence test-one who is physically present in the U.S. for 183 days or more in such year. There is a 3- year lookback. There are exceptions. The closer connection exception, a person who is in U.S. for current year less than 183 days but with the lookback meets the Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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e183 day equivalent, is treated as a non-resident alien if the person establishes that for the current year his ‘tax home’ is in a foreign country and he has a closer connection with than country rather than the U.S. The individual may qualify for an exception under a treaty or may be an exempt individual, foreign government official, a teacher or trainee under a J or Q visa, a student under an F, J, M, or Q visa, or a professional athlete under an O visa. There is an absolute safe harbor of 120 days. There is also a medical exclusion for an individual who enters the U.S. but after becomes ill and exceeds the time limit; note this person cannot qualify for this exclusion if he comes to the U.S. ill seeking treatment. If a person is not deemed a resident alien, rather than being taxed on their worldwide income are taxed just on U.S. source income. For foreign person who plan to become U.S. citizens should consider preimmigration planning. Consider accelerating income in home jurisdiction; if there are losses wait until entering the U.S. Consider making gifts prior to entering the U.S. and creation of trusts before entering the U.S. A person obtains U.S. citizenship in a variety of ways: i) A person born in the U.S. is automatically a U.S. citizen; however watch if child is born in U.S. to foreign diplomats; ii) a child born outside of the U.S. to parents one or both of whom is a U.S. citizen; iii) naturalization; or iv) derivative for a child born outside of the U.S. automatically becomes a U.S. citizen. The panel then addressed concerns and considerations of U.S. persons not compliant with U.S. tax filing. The taxpayer has several options. One is doing nothing-not recommended. A quiet disclosure, by filing amended tax returns and paying the requisite taxes. Participating in the Offshore Voluntary Disclosure Program (OVDP), an IRS program enabling a taxpayer to become compliant, avoid substantial civil penalties and generally eliminate the risk of criminal prosecution for tax noncompliance and failing to file FBARs. Alternatively a streamlined filing compliance procedure is available to certain individual taxpayers who can certify that their failure to report financial assets and pay all tax due in respect of those assets did not result from willful conduct on their part. The panel then concluded by discussing expatriation. A person repatriates by renouncing U.S. citizenship. Prior to expatriating a person must confirm they have residence in another jurisdiction, i.e. by expatriating a person does not want to end up where they become stateless. Expatriation is irrevocable once approved. A child of an expatriate does not lose citizenship if the child is under the age of 18. Once a person becomes an expatriate they are now an alien and will require a visa to reenter the U.S. Under the Reed Amendment which to date has not withstood challenge, a person who is a former U.S. citizen who official renounces citizenship as determined by the Attorney General for the purpose of avoiding taxation by the U.S. is ineligible to obtain any U.S. visa or be admitted to the U.S.


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A person who expatriates is also subject to an exit tax. In effect an estate tax. The person is subject to an income tax based on as if the person sold all of his assets at the time of expatriation. Further if the person makes transfers back to children in the U.S. by gift or through estate there is then an inheritance tax. Caution, the exit tax can apply to a green card holder. ===============================================================

Wrap-Up: Practical Planning Strategies for the Future This wrap-up presentation, reviewed several of the key planning strategies covered during the week, and explained why and how some of them will remain viable strategies for the future. It also explained why the future is nearer than ever before, and offered practical suggestions for how practitioners can prepare and thrive despite the uncertainty the future presents. The discussion included ideas on how estate planning will become increasingly dependent upon investment strategies and results, and explain why planning will be more predictable with greater investment certainty. This session also presented alternative ideas for structuring an estate planning practice should the future turn out to be different than forecasted. Presenters: Jonathan G. Blattmachr and Martin M. Shenkman Reporter: Kimon P. Karas This presentation was the final wrap up session. Jonathan discussed after Natalie’s presentation on qualified plans and IRAs for the right circumstance a client may want to consider private placement life insurance instead of accumulating significant wealth through qualified plan alternatives. The presenters commenced the program with citing some statistics from a recent Trusts and Estates luncheon reporting on responses to surveys. The theme of the presentation was for planners to consider alternatives in planning. Whereas in the past estate planning was primarily driven by estate tax planning considerations and techniques. Interesting in the survey post ATRA 43% of the respondents mentioned nothing has changed in the delivery of estate planning services to clients. In the same survey 67% of the clients who responded stated their goal was to avoid probate. In light of the increased exemptions and client’s longevity, transfer of wealth may not be the driving force in current estate planning needs for clients. In the same survey other considerations were: 65% concerned about avoiding discord among beneficiaries; 38% preventing heirs from mismanagement of assets; the balance concerned about asset protection. Interesting observation tax considerations were not identified as a concern. Baby boomers report 2 issues that are facing them are: do they have sufficient cash flow for their remaining life and suffering from Alzheimer’s or some form of dementia as they age affecting their ability to maintain and control their finances as well as their wellbeing. Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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The panelists discussed that planning needs to start early on. Waiting until the client has reached their 70s or 80s just may be too late. Statistics were cited that the age for peak financial decision making is age 50; that by age 60 decision making ability begins to decline and significantly impacted by age 80. Alzheimer’s strikes at a 47% rate for those over 85. In addressing longevity planning the panelists also referred to statistics relating to lapse rates with long term care insurance. In a recent study the authors identified 3 primary categories for lapsing coverage:

1. Strategic lapse, determination policy no longer needed; 2. Financial burden, cannot afford to maintain policy 3. Cognitive decline, individuals who lapse policy because of cognitive challenges—most likely the persons who most need the coverage, yet lapse it.

Lapse rates for long term care insurance are quite low, mere 1-2% per year. However considering such a policy may be in force for 30+ years the lapse rate is significant. Moe than 1/3 of all long term policies will lapse. Men age 65 have a 32% probability of lapse and women age 65 have a 38$ probability of lapse. The panelists discussed the need to incorporate and address longevity issues in estate planning documents. For example in one’s revocable trust focus not just on the transfer of assets but the care of the grantor in the event of a disability or incapacity. That can be a slow process that just does not happen overnight. The client and even family members are not sensitive to the declining health or thought processes of the individual. Consider adding provisions for visits by a care manager; corporate fiduciary; trust protector; adding language to the trust that it can be amended by the grantor together with another person to protect grantor from undue influence from outside parties, family or otherwise. In drafting powers of attorney, for example, consider whether it is appropriate to have gift language. The client’s wealth may be such that having any gift language just may not be in client’s interest. Giving assets away may not be in the client’s best interest but rather protecting and maintain the assets the client has to live out his life. Powers of attorney are probably the most common form of elder financial abuse. Consider an economic modeling even for wealthy clients as part of a gift giving program or strategy. Next the panelists discussed the goal of family harmony. Critical to that is making all the family a part of the decision making process. Too often the plan becomes a ‘surprise’ to the heirs. Consider whether mediation/arbitration should be the dispute mechanism. Only Florida currently allows for arbitration. Jonathan mentioned he has used a concept of a conditional inheritance, where as part of the gift/disposition to a beneficiary it is conditioned upon the beneficiary agreeing to mediation/arbitration as a condition to the gift. Referring to the Mikel recent Crummey case, the panelists discussed probing clients for the importance of religious considerations in one’s documents. Mikel included a Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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religious dispute resolution mechanism in their documents. Religion is often of primary importance to clients but barely broached in the estate planning context. With taxes not being the primary motivation for estate planning personal considerations, including religion, should grow in importance as part of the planning process. In that regard the outline contained various religious arbitration clauses: Christian, Jewish, Buddhist, Islamic, and Ba’hai’ as examples. The topic next discussed was basis considerations. Three scenarios were presented.

1. Irrevocable trust. There may be circumstances where grantor wants to get assets back into estate. Suggestion is to give the trustee a power that permits trustee to grant right to the grantor to cause estate inclusion over entire trust or even asset by asset. See RR 84-179. 2. Community property. If one does not reside in a community property state considering opting in by creating either an Alaska or Tennessee trust. Panelists understand other states are considering this concept. 3. Grantor trust. Any transfer of property should be to a grantor trust. Allows the grantor the opportunity to purchase low basis assets from the trust. The purchase should not be for a note. If there is a need for liquidity to purchase the assets go to an outside independent source for the loan. Jonathan suggested that on death even though the assets are not includable in the grantor’s estate, basis adjustment (step up for appreciated assets) at death should be available to the trust assets.

As part of the basis discussion the panelists posited whether one can grant a general power of appointment in a power of attorney. Is it possible to intentionally cause the agent to hold a general power of appointment over the principal’s assets. The panelists concluded the presentation with another consideration using a healthcare power of attorney or general power of attorney to change to principal’s domicile. The Institute concluded with Tina announcing a record attendance at this year’s Institute of 3,110 attendees. ===============================================================

Heckerling Vendor Interviews 2016 By: D. W. Craig Dreyer Insuring a Better World Fund Insuring a Better World Fund (IABWF) allows donors to make charitable gifts of unneeded, unwanted, or unaffordable life insurance policies to charities of their choice. It allows clients to make a significant gift to charity, while alleviating the clients financial Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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burden of paying for premiums, while giving them the satisfaction of making a difference for the charity of their choice. For more information, please visit their website at www.IABWF.org or by phone at (312) 819-0790. Interactive Legal Suite Interactive Legal Suite has three separate packages drafting packages. Wealth Transfer Planning, Elder Law Planning and Essential estate planning. In the past year Wealth Transfer Planning has updated their documents to create a new Split Purchase Annuity Trust. They have also added automated beneficiary designation forms for retirement accounts and added a gun trust. The document assembly systems provide documents for 50 states and the District of Columbia. The full Wealth Transfer Planning package includes options such as an FLP, FLLC, and Grantor Trusts. Purchasing one license gives you access to multiple state versions in the Wealth Transfer Planning module. In addition, for this year they have updated their program to have multiple document processing and assembly. Pricing is available by contacting them and they have a Heckerling discount. Further information on Interactive Legal can be found at www.interactivelegal.com or by calling (321) 252-0100. International Wealth Tax Advisors International Wealth Tax Advisors assists clients and advisors with cross border tax services. They handle matters including: foreign trusts and estates, pre-immigration and expatriation planning, investment by non-us person in U.S. real property, offshore voluntary disclosures, FACTA compliance, and inbound corporate tax services. For more information, please visit www.iwtas.com or contact them at (212) 256-1142. Key National Trust Company Key National Trust Company is a subsidiary of Key Bank, NA. It provides trust services for wealthy clients and those seeking asset protection, tax savings, and flexibility using Delaware’s favorable laws. For more information, please contact Isabel A. Pryor, CFTA, MBA at (302) 574-4702. Lackner Group 6 in 1 Estate and Trust Administration Lackner Group 6 in 1 allows a user to produce a US Estate Tax Return, Inventory, U.S. Fiduciary Income Tax Return, State Fiduciary Income Tax Return, State Inheritance/Estate Tax, Account (Trustee’s and Executors) and Inventory with one set of data entry. In addition, the system can prepare Form 709s. It also supports probate forms for CT, DE, NJ, NY, MA, IL, IN, OH, VA, WI, PA, and NC with a generic model as well. It also includes DecoupleCruncher in order to perform estate tax calculations in multiple states. New this year they have implemented modernized e-file for fiduciary income tax returns. Federal, NJ, NY and PA are all included. OH is also being added to the state fiduciary returns this year. They have also implemented the new form 8971 to report basis to beneficiaries for Form 706s after February 29, 2016 and updated Decouple Cruncher with changes in state estate taxes. They offer a Heckerling discount. They also offer portions of the 6-1 system individually. You can obtain more information at www.lacknergroup.com or call 1-800-709-1041. Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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Law Finance Group Law Finance Group provides capital that is needed to sustain litigation. They focus on post judgement appeals, settled cases, and trust and estate disputes. For more information, please contact them at (415) 446-2300 or visit them at www.lawfinance.com. Lawgic, LLC Lawgic is an estate planning drafting program which has specific drafting software for a large number of states as well as a state neutral version. An Illinois state specific version is slated for release in the 1st quarter of this year and they are still working on many others. Last year the updated all titles for changes in federal and state law. Florida also received substantial updates to their Advance Directives due to the new law effective in October. New forms were added with increased options and these changes were also expanded to other state versions. Many steps were taken to enhance customization capability, expand user interface (allowing users to change the display and enhance its search features, and to provide for automatic updating of titles). Lawgic offers free training and support. Most state specific versions can be purchased for $1,900 per year and pricing is available on their website. They also provide a Heckerling discount. They also work with affiliates to offer additional services through Estate Works, Crummey Service and My Persona Data Safe. More information can found on the Lawgic website at www.lawgic.com or by calling (877) 252-9442. Legal Aggregation Technologies Legal and Financial Aggregation is a tool for professional advisors to work from a common set of information to provide the best advice for clients. It assists advisors with complex and ever-changing client information without significant time and effort. The software maintains on a single screen, an accurate and complete set of information for all advisors to share and also includes: Legal documents, tax returns and financial information. Electronic documents are encrypted and stored securely in folders linked to the respective family member or line item on the net worth statement to which they apply. For more information, please visit them at www.legalaggregationtechnologies.com or by telephone at (636) 377-0369. Leslie Hindman Auctioneers Leslie Hindman Auctioneers is a fine art auctioneer company with global outreach. They also provide auction appraisals estimates to potential clients. For more information, please visit them at www.lesliehindman.com or contact them at (312) 280-1212. Lexis Nexis Lexis Nexis is a broad provider of legal research and tools for the estate planning professional. They over a voluminous amount of online resources, text resources, and drafting programs. New for this year is the expansion of the LexisNexis Advance platform to their tax libraries. It evolves legal research into more of an amazon themed search process, and away from the old terms and connectors searches of the past. For more information, please visit them at www.LexisNexis.com or by telephone at (888) AT-LEXIS. Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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Life Audit Professionals Life audit professionals is an insurance agency that works with estate planning attorneys, CPAs, wealth advisors and charities to confirm that your clients’ life insurance portfolio matches their estate planning goals in order to provide a team consensus on maximizing the service provided to client. They differentiate themselves with highly educated about life insurance matters and appropriate tax law. They can be contacted (844) 543-3283 or online at www.mylifeaudit.com. Life Insurance Settlements Life Insurance Settlements is a company that provides life settlements for life insurance products including term, universal, Variable, Joint Survivor, Whole, Group, and Key man insurance products. The company reviews policies of all values beginning at face values of 100,000 and up. They can be contacted at 1-866-326-Life or at www.lisettlements.com. Lighthouse Trust Lighthouse Trust is a company that specializes in asset protection, captive insurance, and wealth management. They have business entities in various popular offshore jurisdictions including Nevis, Belize, and Switzerland. You can get more information at www.lighthouse-trust.com or contact them at (858) 848-7878. Lombard International Lombard International has been partnering with the advisors of high net worth individuals and institutions on addressing clients complex financial needs on a global basis with life insurance products including private placement life insurance and private placement variable annuities. For more information, please visit them at www.lombardinternational.com or contact them at (484) 530-4800. MilleaBros MilleaBros is an auction and appraisal company. They have extensive experience in antiques and collectibles. For more information, please visit them at www.milleabros.com or call them at (973) 377-1500. MPI MPI is a business valuation and advisory firm providing valuations for a variety of tax, financial reporting and other business applications, as well as corporate advisory services to business owners and their representatives. They often service the following areas: gift and estate tax, ESOPS, income tax, 409A valuations, expert testimony, blockage discounts, restricted and preferred stock, buy sell agreements, charitable contributions, and marital dissolutions. For more information, please visit www.mpival.com or contact them at (609) 924-4200. NFP


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NFP Corp, is an insurance broker and consultant that provides employee benefits, property & casualty, retirement, and individual insurance and wealth management solutions through licensed subsidiaries and affiliates. For more information, you can visit them at www.nfp.com or contact them at (844) ASK-NFP1. National Philanthropic Trust National Philanthropic Trust is the largest independent provider of donor advised funds. They can assist advisors with their clients’ charitable desires while taking care of all the paperwork. They can also assist clients with setting up and running Type I supporting organizations to achieve their charitable goals. They can be visited at nptrust.org or contacted at (888) 878-7900. The National Underwriter Company The National Underwriter Company provides tax, insurance, and financial planning information for professionals through various reference materials. For more information, you can visit them at www.nationalunderwirter.com or by telephone at (800) 543-0874. Neuberger Berman Neuberger Berman is a private, independent, employee owned investment manager. The firm manages equities, fixed income, private equity and hedge fund portfolios for institutions and advisors worldwide. For more information, please visit them at www.nb.com or reach them by telephone at (800) 223-6448. Nixon Peabody Financial Services Nixon Peabody Financial Services offer clients full-service fiduciary management without having to establish, support and staff “back-office” financial operations. They can be visited at www.Nixonpeabody.com or contacted at (617) 345-6115. Northern Trust Company Northern Trust offers investment management, asset and fund administration, fiduciary and banking solutions to corporations, institutions and affluent individuals. Northern Trust also provides information to professionals through their wealth advisor portal. Here you can sign up for newsletter and they even provide sample estate planning forms at no cost through this website. For more information, please go to the Northern Trust Website at https://www.northerntrust.com/wealth-management/united-states/wealth-advisor. O’Toole-Ewald Art Associates Inc. O’Toole-Ewald Art Associates Inc. is a leading authority on decorative and fine art. They provide appraisals and valuations, litigation support, business valuations, and special services which includes art leasing, collections management, and mediation services. For more information, please visit them at www.otole-ewlad.com or contact them at (212) 989-5151. OC Consulting Group OC Consulting Group is a fee-based life insurance consulting practice which is brought in by and works closely with estate planners, attorneys, CPAs, trustees, non-profits and high end financial and insurance advisors to bring expert, third party insurance


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information to the table. For more information, please visit them at www.oc-lic.com or contact them at (616) 456-1000. Pall Mall Art Advisors Pall Mall Art Advisors provides specialist guidance to insurance brokers, law firms, banks, accountants, wealth managers, institutions and private customers. They assist with valuations, acquisitions, insurance, collection management, advisory and other art and tangible personal property related issues. For more information, please visit www.pallmallartadvisors.com or call them at (610) 254-8400. Parasec Parasec is a global document filing and retrieval service. They handle the following matters: Corporate Research, Formations, Mergers, Acquisitions and Dissolutions; Corporate and LLC Kits; Business Licensing Compliance/Gap Analysis; Nationwide Registered Agent for Service of Process; Commercial & Residential Real Estate; UCC Typing, Filing & Tracking; County Records Filings & Retrievals; Court Records Filings & Retrievals; Investigation & Litigation Research; Intellectual Property; and Apostilles, Legalizations, Authentications and Translations. For more information, please visit www.parasec.com or contact them at (800) 533-7272. Pluris Valuation Advisors Pluris valuation advisors specializes in Pluris in real estate and business valuations and illiquid, complex, and distressed securities. Securities covered include auction-rate securities, structured products, derivatives, investment fund LP or GP interests, PIPEs, restricted securities, distressed debt, bankruptcy claims, intangibles, operating businesses, and asset holding entities. For more information, please visit them at www.pluris.com or call them at (212) 248-4500. The Presser Law Firm, P.A. The Presser Law Firm P.A. specializes in asset protection. They work with clients and other attorneys to assist with the implement of various asset protection strategies from how to title assets to more exotic offshore asset protection devices. They can be contacted at (561) 953-1940 or by visiting their website at www.AssetProtectionAttorneys.com. The Private Client Reserve of U.S. Bank The Private Client Reserve of U.S. Bank serves individuals and families with complex financial interests and needs. They provide holistic wealth management services to clients, and specialize in advising business owners, corporate executives, and professional service principals and partners. You can visit them at www.reserve.usbank.com. Rago Arts & Auction Center Rago is an auction house that serves sellers and buyers internationally. They also sell artwork privately, offer insurance, valuations, and appraisals for personal property; estate services from appraisal to auction and clean out; and exhibitions and lectures in house and online. Rago is based in New Jersey, midway between Philadelphia and New York City. You can visit them at www.ragoarts.com or contact them directly at (609) 397-9374. RBC Trust Company (Delaware Limited) RBC Trust Company provides complete personal trust and custody services through partnerships with professional advisors throughout the country. They specialize in Delaware trusts. They can be visited at www.rbctrust.com or by telephone at (800) 441-Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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7698. Regions Bank Private Wealth Management Regions Bank Private Wealth Management provides private wealth management customized to a client’s specific needs and goals. For more information, please visit them at www.regions.com/wealthinsights. Right at Home Right at Home is a senior in home care organization that operates through individually owned and operated independent care franchisees. The assist with the home care of the elderly and also with transitioning clients back to their home after hospital visits. You can visit them at www.rightathome.net or call them at (877) 697-7537. ===============================================================

Heckerling Vendor Interviews 2016 By: Beth Anderson ABA – Section of Real Property, Trust and Estate Law – booth 225 - www.americanbar.org/groups/real_property_trust_estate.html The ABA booth provided copies of the whitepaper titled “Expatriation and the New Section 2801 Proposed Regulations” that was mentioned during Recent Developments presentation. In addition, the ABA carries a number of publications in its booth that are available for sale at 20% discount through January 31, 2016. Advantage Insurance – Silver Sponsor – booth 222 - www.aih.com.ky Advantage Insurance works with advisors in the wealth planning community to find insurance solutions for advisors’ clients, whether onshore or offshore. Insurance plans are customized to fit any wealth management strategy, whether it’s life insurance, business insurance, captive insurance, etc. A “to-the-trade” service provider, they specialize in insurance service, and do not custody or manage the advisor’s client’s money. Alaska Trust Company – booth 425 - www.alaskatrust.com Alaska Trust Company provides comprehensive trust and investment services, and works with advisors and their clients throughout the nation who want to take advantage of Alaska’s trust laws. Its website provides many resources including sample forms and provisions and articles discussing the benefits of Alaska trust law. American Academy of Attorney-CPAs – booth 209 - www.attorney-cpa.com The American Academy of Attorney-CPAs will be launching a new website in Spring of 2016. The AAA-CPAs specializes in protecting the rights of professionals who have qualified to practice as both an attorney and a CPA. Memberships cost $130 for the first year, and $260 per year thereafter. Affiliate, government, student and educator memberships are also available at various prices but all new memberships are discounted by 50%. American Society of Appraisers – booth 206 - www.appraisers.org Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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American Society of Appraisers is an organization for appraisers, claiming to require the highest qualifications for their appraisers. They offer the Accredited Senior Appraiser credential. Members of the ASA go through testing, reaccreditation, and continuing education. Members are required to have a minimum of 2.5 years of experience and are reaccredited every 5 years. Membership rates vary by discipline (business, personal property, jewelry, real estate, etc.). Appraisers & Planners, Inc. – Silver Sponsor – booth 218 - www.appraisersandplanners.com Appraisers & Planners, Inc. promotes itself as one of the country’s largest and oldest firms specializing almost exclusively in estate and trust work. Appraisers & Planners’ principal office is in New York but it has additional office in Philadelphia and national coverage through its affiliates. Ashar Group, LLC – booth 130 - www.ashargroup.com Ashar Group provides life settlement opportunities and serves as policy valuation experts. They offer many solutions for unwanted life insurance policies, including policies implicated in Medicaid planning, expiring term policies, and underfunded universal life policies, among others. Ashar Group, a full service brokerage firm representing clients and advisors, has a national footprint. When valuing a policy, they make sure to seek out the appropriate bids to get the best fair market value. Atlantic Trust Company, N.A. – booth J-2 - www.atlantictrust.com Atlantic Trust provides private wealth management for individuals, families, foundations and endowments. The have robust family offices services, working from a multi-faceted approach. Atlantic Trust now offers Delaware trust services and has new offices in West Palm Beach, Florida. Bankers Trust – Platinum Sponsor – booth B-2 - www.BTCSouthDakota.com Bankers Trust Company of South Dakota can help your clients take advantage of South Dakota’s favorable laws, including laws covering asset protection, dynasty trusts, directed trusts and trust protectors, and decanting. Additionally, they have a dedicated ESOP Services Team to provide trust and custodial services to ESOP companies nationwide, whether it is on a transactional or ongoing basis. Bloomberg BNA – Platinum Sponsor – booth C Over the past year, Bloomberg BNA has continued to add content and functionality across the spectrum of their services, including practice tools, news, commentary and journals. Primary sources have been built into its services. The current 706 forms have been released and the 709 forms are in the works. The booth was offer complementary copies of the 2016 Federal Tax Guide – a quick


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index reference guide for individual and business issues as well as the 2016 BNA Calendar. BNY Mellon Wealth Management – Platinum Sponsor – booth E-2 - www.bnymellonwealthmanagement.com BNY Mellon Wealth Management has full-service wealth management offerings for a broad spectrum of clients, including individuals, family offices, foundations, and other professionals. They work closely with other advisors to further the client relationship and ensure comprehensive and well-executed planning. Bonhams Auctioneers & Appraisers – booth 413 www.bonhams.com Bonhams is a privately owned British auction house and one of the world's oldest and largest auctioneers of fine art and antiques. It holds itself out as the only auction house in the U.S. with actions in New York, Los Angeles and San Francisco. In addition, it has locations in London, Hong Kong and Sydney. They specialize in a variety of niche markets including antique and collectible cars. Braun Co. – booth 403A - www.braunco.com and www.premiereestates.com Braun Co. and Premiere Estates offer valuations and auctions for unique assets with a boutique service model. Braun Co. is now providing a market for minority interests in closely held businesses. Brentmark Software, Inc. – booth 408 - www.brentmark.com Brentmark offers popular estate planning popular programs including Estate Planning Tools, Retirement Plan Analyzer, and Retirement Distributions Planner. It recently released the 2016 version of the Savings Bond Toolkit which provides for easy organization and management of a client's savings bond portfolio, and makes retitling bonds simple with its automatic fill-ins for Forms 1455, 1851, and 4000. Brentmark is offering a 20% discount for most software products use the code: SHOW. Contact Nicole Maholtz [email protected] for more information. Broadspire, A Crawford Company – booth 213 - www.broadspirecaremanagement.com Broadspire Care Management offers solutions for the case of the elderly and individuals with special needs. They coordinate facility and in-home care, working with their clients to determine their needs for housing, medication, long-term care, and transitions, and help find solutions for those who want to age in place, and can evaluate alternative living arrangements. They also provide medical billing auditing service. CAF America Global Philanthropic Services – Platinum Sponsor – booth D-2 - www.cafamerica.org


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CAF America is an international donor advised fund that makes giving abroad easy, efficient, and effective. In existence for 21 years, in the past nine years alone, they granted $500 million across 90 countries through the CAF network. They have a presence in six continents (they have yet to work with the Antarctic penguins), and are committed to breaking down borders to international giving. They also offer full global philanthropic services to complement advisors’ trust and estate services, and promote some unique solutions for US/UK dual taxpayers. CFP Board – booth 300 - http://www.cfp.net/ The CFP Board upholds professional standards in personal financial planning. Visit their website to create an online account with the CFP board, for information about the CFP designation, and apply to take the examination. The next window to take the CFP Certification Examination is March 15-19, 2016, and the deadline to register is March 1, 2016. Charles Schwab Bank – Gold Sponsor – booth 120 - www.schwab.com and www.schwabcharitable.org Charles Schwab and its charitable arm, Schwab Charitable, were both present at Heckerling. The combination of two industries under one roof allows for a seamless transition as their clients’ needs and donative intent grow over time. Charles Schwab is truly a one stop shop for trusts, investments and charitable planning. For more information on the planning opportunities with Schwab Charitable contact Cathleen Grady ([email protected]) or Kelly Berg ([email protected]). City National Rochdale – booth 233 - www.cnr.com and www.cnb.com City National Rochdale is an investment management firm specializing in intelligently personalized portfolio management for high-net-worth individuals, families, and foundations and is a wholly owned subsidiary of City National Bank. Clars Auction Gallery – booth 304 - www.clars.com Located in the Bay Area, Clars Auction Gallery has monthly three-day auctions of fine art, antiques, furniture, vehicles, and many other types of assets. They offer several options to obtain a valuation, including via photos online (subject to revision and limits, and not for jewelry), at one of their weekly valuation sessions, or at a scheduled meeting with a specialist. Comerica Bank & Trust, N.A. – Silver Sponsor – booth 312 - www.comerica.com Through its trustee alliance group Comerica can serve as administrative trustee of any domestic trust while allowing the local family investment manager to continue to manage the trust assets. Visit its website for more information on its services and fees. Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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Heckerling Vendor Interviews 2016 By: Patrick Duffy Law Finance Group With Alan Zimmerman and Wendy Walker Law Finance Group (“LFG”) is a litigation funding company with specialties in appeal finance, settlement finance, and estate & trust litigation. In the context of estate & trust litigation financing, LFG coordinates with practitioners and clients to evaluate the legal merits of each case as well as the range of potential outcomes. On that basis, LFG provides non-recourse financing services for both legal fees for attorneys and personal advances for beneficiaries. This model is unique, says Estate Funding Counsel Wendy Walker, because of the fact-driven analysis approach used by LFG in determining the cases it takes. LFG’s estate & trust litigation financing, says founder and CEO Alan Zimmerman, gives beneficiaries the ability to hire the best lawyers and settle their cases on fair terms. By financing cases on a non-recourse basis, the interests of the beneficiaries, the attorneys, and LFG are completely aligned. Attorneys will also appreciate LFG’s “hands-off” approach to the technical aspects of the litigation and the prompt payment of their fees, which are paid immediately after client approval. To learn more, visit http://www.lawfinance.com/services/estate-finance/ US Trust With Michael McCarthy A Heckerling sponsor for 34 years, US Trust is the well-known fiduciary and private wealth division of Bank of America. With over 90 locations, US Trust serves thousands of clients in every state. Each client is assigned a collaborative team consisting of a trust officer, a wealth strategist, and a private client advisor. Additional team members in various specialties can be added depending upon the circumstances of each family. The bank proactively works with clients on more than their finances and takes care to address sensitive personal matters, including setting up a plan to address the potential for cognitive decline. While more than 100 associates—most of them attorneys— work in the Office of the Chief Fiduciary to support the trust officers throughout the country, a foundational principal of US Trust’s strategy is to closely collaborate with the client’s existing advisors. Often, says Managing Director Michael McCarthy, US Trust is able actually increase a client’s interactions with their attorney as a result of the high-touch approach taken by the bank. Because of its size and experience, US Trust is able to address the specialized needs of virtually any client. For example, the bank’s Special Asset Management Group eagerly Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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takes on unique (and sometimes troublesome) assets such as timberland, farms, ranches, oil and gas interests, and closely-held businesses. Clients with charitable interests can turn to US Trust to manage charitable trusts and the bank is able to act as an agent to assist with the administration of private foundations. Clients in the LGBT community can take advantage of the bank’s deep expertise in that area of the law, which McCarthy urges is still an issue even after the holdings in Windsor and Obergefell. To learn more, visit http://www.ustrust.com/ Winston Art Group With Jennifer Jones and Claire Brown The number eight has everything to do with why Winston Art Group (“Winston”) is the nation’s largest independent art appraisal and advisory firm. Eight, explains Jennifer Jones, Director of Winston’s Trusts & Estates group, is considered to be a very lucky number in the Chinese culture and ensuring that, for example, your collection of Chinese Jade is the eighth lot in an auction can be the difference between a six figure sale and a seven figure sale in some cases. An unrelenting focus on details like that are the differentiator for Winston. Because Winston does not conduct auctions, it is able render independent advice to clients looking to buy and sell virtually any type of tangible personal property for a flat hourly fee. With a deep and experienced talent pool, appraisers at Winston are often called upon to testify as expert witnesses in high-stakes cases involving valuable artwork or other tangible personal property. Winston has extensive experience with fiduciaries in various capacities. Besides providing appraisals for gift and estate tax returns, Winston often works with Trustees that hold art on an ongoing basis to establish up-to-date values for the works that are included in annual accountings. For estate planners looking to take advantage of more exotic planning techniques, Winston has experience rendering opinions on art leasing rates. Executors can engage Winston as an agent to advise on the storage and maintenance of fine art before it is liquidated or distributed. One oft-overlooked aspect of charitable planning for art, says Jones, is ensuring that the devisee is actually interested in receiving the gift. Administrator’s facing the dilemma of a disclaimed charitable bequest of art can work with Winston to find an acceptable home for the work or collection. Her advice to fiduciaries facing the prospect of administering trusts or estates with significant art collections? Get a good appraisal and get it done right the first time. To learn more, visit http://winstonartgroup.com/ Vanguard – Flagship Select Services With Dennis Duffy Flagship Select Services (“Flagship”) is the ultra-high net worth group within first-time Heckerling sponsor Vanguard for clients with $10 Million or more invested with the Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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brokerage house. Flagship serves more than 15,000 families across the country, with invested assets ranging between $10 Million to over $1 Billion. The group has recently moved to a more relationship-centric structure and takes a hands-on approach with these high end clients. A team of investment advisors meets with and gets to know each client individually before designing a customized invesment plan. Flagship also reviews estate planning documents and works with a client’s existing advisors to ensure the estate plan not only meets the client’s current goals but confers the maximum financial benefit. Flagship also works with Vanguard National Trust Company, Vanguard’s fiduciary services arm. While the Trust Company does not engage in probate or death settlement, it will administer virtually any type of trust and currently oversees more than 17 Billion in assets. Vanguard, says Dennis Duffy, head of Flagship, is about more than investments. To learn more, visit https://investor.vanguard.com Skinner, Inc. With Emerson Tuttle Skinner, Inc. (“Skinner”) is an independent auction house based out of Boston, Massachusetts. It is best known for its sale of Americana, especially folk artwork, but with more than thirty specialists focusing on twenty distinct specialty areas, Skinner is equipped to sell virtually any kind of art. Each year, Skinner holds more than sixty auctions, at least thirty percent of which are held purely online. In addition to auctions, Skinner also appraises all types of tangible personal property, whether independently or as part of the sale of the time. The differentiating factor for Skinner, says Director of Institutional Relations, Emerson Tuttle, is the firm’s reputation for a high level of experience, expertise and integrity in the art world. Trustees and executors can look to Skinner for assistance with the fiduciary management of non-traditional tangible personal property as well, including Americana, folk art, and antique furniture. Skinner maintains offices in Boston, Massachusetts, Coral Gables, Florida, and New York City. For more information, visit http://www.skinnerinc.com/ TEAM Risk Management Strategies With Josh Greenberg First-time vendor TEAM Risk Management Strategies (“TEAM”) provides employment solutions to trustees that would otherwise engage in direct employment relationships with employees of any kind. While the company primarily focuses on in-home caregiver and other domestic employees, it can assist fiduciaries by serving as the employer of record for virtually any type of trust employee—from gardener to ranch hand to yacht captain. The issue, says CEO Josh Greenberg, is that many fiduciaries (and their advisors) do not realize the intrinsic risks associated with trusts serving as employers. Besides the administrative difficulties, there is significant hidden liability for taxes, insurance, and workers compensation. TEAM (the acronym stands for “Trust Employee Administration and Management”) leverages its size and expertise to minimize those risks and costs for Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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trustees and trusts. While TEAM historically served corporate trustees—including such blue bloods as Wells Fargo and Northern Trust—it has recently begun to work with individual fiduciaries. Employment services are provided for a flat monthly administrative fee (charged per employee), with the trusts covering salary and all other costs of employment. For more information, visit http://team-risk.com/ Veralytic With Barry Flagg Veralytic provides consumers and their advisors with a patented five star independent rating system for individual insurance products. The system is unique in that, unlike traditional ratings systems that focus solely on the insurer, it measures the objective quality of a given insurance product against the universe of peer group products in relation to the client’s goals and objectives. While irrevocable life insurance trust trustees often use the service to document their investment decisions, Veralytic is a valuable tool for anyone purchasing life insurance and anyone giving advice about buying a policy. The industry’s practice of using internal projections, says inventor and President Barry Flagg, has been criticized by leading actuarial authorities as “fundamentally inappropriate.” Veralytic departs from industry practices by rating across five separate measurements covering the claims paying ability of the carrier, the cost of the policy, the stability of pricing representations, the insured’s access to cash value, and the carrier’s actual historic investment performance. With rising litigation over life insurance, Flagg cautions that fiduciaries and advisors should be careful to rely on insurance industry practices that have been criticized by regulators. For more information, visit http://www.veralytic.com/ Sterling Trustees Antony Joffe A fourth year sponsor, Sterling Trustees (“Sterling”) is an independent South Dakota trust company with more than $2.1 Billion in assets under management. Sterling leverages the expertise of its eight employees using its patented trust administration platform, Wealth Hubsm, to serve families living around the globe. In fact, Wealth Hubsm has been so successfully internally, says president Antony Joffe, that Sterling has recently begun marketing the system to law firms and other independent trust companies. Sterling, which offers no investment advice, is an experienced custodian of non-traditional assets including interests in closely-held businesses, art, private equity, and hedge funds. Each trust is administered on a fixed-fee basis, which varies depending upon the size and complexity of the trust. For more information, visit http://www.sterlingtrustees.com/ Abbot Downing With Bryan Austin and Lester Law Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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Abbot Downing is the ultra-high net worth division of Wells Fargo’s Private Bank serving families with a net worth of at least $100 Million. While a client’s investable assets are one factor considered in placing families with the exclusive service, Bryan Austin, Director of Financial Planning, says that the unique nature of the bank’s clients means that Abbot Downing has had to focus on much more than that traditional industry measure. Ultimately, the overall wealth of the family unit is considered—whether it is concentrated in a portfolio or tied up in a closely-held business. Clients of Abbot Downing benefit from Wells Fargo’s trust platform, but are privy to the individualized attention that such families have come to expect. Abbot Downing mandates a client-to-relationship manager ratio of 15:1 and the average experience of in-house advisors is twenty-two years. Those advisors actively engages with each client’s tax, legal, and other advisors says Lester Law, Director of the Naples branch. Abbot Downing has three hundred employees that serve six hundred families representing more than $38 Billion in assets. For more information, visit www.abbotdowning.com RM Sotheby’s With Alain Squindo Formerly RM Auctions, the longtime leader in automotive auctions recently formed a strategic partnership with the venerable auction house to form RM Sotheby’s (“RM”). While this is RM’s first time at Heckerling, the firm has more than thirty-five years’ experience in brokering private treaty sales, conducting public auctions, and providing estate planning and financial services. RM currently holds records for the highest grossing car auction ever ($172.9 Million in Monterey this past December) and the most valuable car ever (a 1950s Ferrari track car sold for $28 Million in 2015). RM also provides restoration services and, in fact, the firm’s restoration division won best of show in Pebble Beach in 2015. Advisors and fiduciaries can look to RM for expertise in a wide area of automotive-related areas including transport of fine cars (and collections), liquidation of collections, and pre-death and post-death planning, restoration and maintenance of vehicles, and “investment” through 1041 exchanges. COO Alain Squindo preaches that even in the car business, location matters; choosing the right venue for the sale of each car in a collection is critical. RM offers an international calendar of events each year to accommodate virtually every automotive niche. Because of its size, RM is able to handle every component of the sale of a fine automobile, including transportation, provenance research, photography, marketing, and auction. Squindo’s daily driver? A 1966 Ford Mustang. For more information, visit www.rmsothebys.com The University of Miami Heckerling Estate Planning Graduate Program With Tina Portuondo


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Before the Heckerling Institute, there was the Heckerling Graduate Program in Estate planning. Phil Heckerling founded the program and adopted the signature structure that it maintains today. In the Fall, the University of Miami’s Heckerling Estate Planning LL.M. program is a traditional academic program with semester-long classes taught by tenured faculty. In the Spring, though, the program’s students have exclusive access to a series of sixteen single credit “modules”—one each week—taught by leaders in the field, most of them practitioners. Each year the program accepts fifteen to twenty full time applicants who begin a year-long “deep dive” into the world of estate planning. Each class is different, says Director Tina Portuondo, but the small size and unique program structure creates close bonds that last throughout careers. While part-time students are accepted on a limited basis, the best experience, says Portuondo, is to enroll full time. Working students can actually “split” the semesters—taking the Fall semester full time while enrolling part-time in the Spring semester and completing those classes over the course of several years. Many of the program’s students are fresh out of law school, but many others are established practitioners looking to hone their estate planning skills. A growing trend observed by Portuondo is the use of the degree by practitioners to pivot from specialties like commercial litigation to trusts and estates. One attorney in particular, recalls Portuondo, was very established before he entered into the LLM program—he was eighty one. Unlike many other LL.M. programs, the Heckerling Estate Planning Graduate Program is practice oriented. Students are exposed to a practical curriculum with classes like Drafting for Estate Planners (taught by Bruce Stone), Generation-Skipping Transfer Tax (taught by Carlyn McCaffrey), and Valuation (Taught by Ed Koren). In the drafting class, students are each paired with a different local practitioner who works with them to develop an actual estate plan using form documents developed by the program. Another class, called Intro to Probate, focuses on the oft-ignored administrative process that is central to so many practices. For more information, visit www.law.miami.edu/academics/llm ===============================================================

Heckerling Vendor Interviews 2016 By: Michelle Mieras *ComStock Advisors ComStock Advisors provides business valuation opinions, working predominantly with closely held companies. They are experienced in consulting and advising on ESOPs for tax-efficient business transitions, including providing ESOP feasibility studies. ComStock Advisors serves a national client base from offices in Chicago, Cincinnati, and Winston-Salem. Visit their website at www.comstockadvisors.com to review articles on Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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technical topics, or call 888-232-2201 for more information or to locate a contact in your region. *Donlevy-Rosen & Rosen, PA Donlevy-Rosen & Rosen, PA is a boutique firm focused on providing offshore asset protection planning. The firm is based in Coral Gables, Florida, but serves clients nationally and internationally. Their website, www.protectyou.com, contains numerous articles, videos, white papers and commentary on asset protection. Contact them at 1-800-417-7134 to see how they might be able to benefit your clients. *DonorsTrust DonorsTrust is a mission-driven organization working directly with donors to ensure that their intent to support organizations with libertarian goals of limited government, personal responsibility and free enterprise. Based in Alexandria, VA, they work with donors across the country. If your clients have libertarian ideals and charitable intent, visit www.donorstrust.org to see how DonorsTrust might serve your client’s needs. *EisnerAmper LLP GOLD SPONSOR EisnerAmper, one of the largest accounting firms in the US, provides services to a broad and diverse base of clients, including family offices, closely held companies, and high net worth families. They pride themselves on forming deep relationships with clients and their clients’ other advisors. Visit their website, www.eisneramper.com, for substantive articles on current topics of interest, such as legal and ethical issues of nonprofit board service, preserving privileges when working with CPAs, and planning for clients with diminished capacity. *ElderCounsel ElderCounsel provides legal technology and education for elder law attorneys. They provide state-specific information regarding LTC planning, Medicaid, Veterans’ benefits, special need trusts, and other planning specific to the aging population. ElderCounsel can help you up to date with legal changes in the elder law arena. Monthly case law and state of the law updates are free to members. Other special events are available to their members and to non-members for a fee. Visit their website, www.eldercounsel.com, to schedule a demonstration. *Empire Valuation Consultants LLC SILVER SPONSOR Empire provides fixed-fee business valuation services throughout the nation. They continue to expand their markets throughout the US, including in Florida, the Mid-Atlantic, and San Francisco. They assist with hard to value assets, and support growing needs in the areas of hedge funds, IRA valuations, ESOPs, and business succession. Visit their website, www.empireval.com, for additional information and to locate the Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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appropriate contact person in your area. Their website also features a number of informative brochures and articles, as well as a calendar of upcoming events. *ESI-APPRAISE APPRAISE, by Evaluation Services, Inc., provides stock and bond valuations for trusts and estates. They offer a variety of secure online methods to use APPRAISE. For quick and easy valuation, use their web-based platform, APRAISE-WEB, and rest assured that your portfolios will be stored for 10 months for viewing or further alteration. Payment can be made via credit card as the service is used, and month end invoices are available. They also offer APPRAISE Plus, which provides historical cost basis with tax allocation factors, corporate actions and transfer/paying agents. Short on time? ESI offers an outsourcing solution, performing securities valuations for you. Sample reports are available on their website, www.appraisenj.com. While you’re there, sign up for their free monthly newsletter. *ESOPMarketplace.com ESOPMarketplace.com provides access to the wide variety of services applicable to ESOPs from start to finish. The providers each specialize in their respective areas, ensuring that each need is expertly covered. The website includes educational materials on ESOPs, serving as a resource for estate and succession planning. Various tools are available for subscription fees. ESOPmarketplace.com is part of a family of websites serving businesses with ownership succession. Visit www.ESOPmarketplace.com or contact Jack Veale at [email protected] for more information, and look for their new website, suddendeathchecklist.com, coming soon. *Estate Valuations & Pricing Systems, Inc. (EVP) Estate Valuations & Pricing Systems, Inc. (“EVP Systems”) offers a suite of products in their EVP Office, including the popular EstateVal program, providing date of death and alternative date valuations, CostBasis, to determine original cost basis, CapWatch, for researching capital changes on millions of issues of stocks and corporate and municipal bonds, and GiftVal, providing gift valuations for use with the Form 709. EVP Systems continues to improve their mutual fund daily accruals (mill rates) system and obtains up to date information from Lipper. As always, the software is free to download at www.evpsys.com, with charges only incurred as securities are processed. Fees are always charged at a fixed rate, but discounts are available for monthly volume. Additional information is available on their website at www.evpsys.com, or call Christina Ramirez, VP, at 1-818-313-6300. *EstateGen EstateGen is an estate planning illustration tool designed specifically for estate planning attorneys. Unlike other diagramming options available to estate planners, EstateGen is tailored to estate planning professionals, created with an eye toward providing an Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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interactive, easy and intuitive platform for attorneys to visually demonstrate to clients how their estate plans flow. The drop-and-drag platform makes it simple to change the visually-appealing diagram to accommodate client demands during the planning process. EstateGen is offered as a monthly subscription, with tiered pricing to accommodate various levels of use. New users should mention Heckerling for a limited-time discount. Visit www.estategen.com for tutorials and introductory information, or email [email protected] for more information. *EstateWorks Systems EstateWorks provides a platform for workflow management, communication, and collaboration focused on estate planning and administration. Attorneys often depend on EstateWorks to improve the efficiency, transparency and overall productivity of their Trust and Estates operations. In addition to functionality that streamlines the day-to-day work of individual team members while incorporating specific institutional requirements, EstateWorks provides customizable analysis and reports that enhance the active management of the overall business. For further information please contact [email protected]. *Everplans GOLD SPONSOR Everplans provides a place to gather important documents, such as wills, healthcare directives, and life insurance policies, but it is more than a digital lockbox. It has a lifestyle focus, serving as a central location to store information about the client’s funeral planning and life and legacy issues, giving clients a place to store and pass along letters to friends or even family recipes. Everplans is offered on two primary platforms, one geared toward individuals (www.everplans.com), and the other geared toward professions such as attorneys, CPAs, insurance agents, and financial advisors (www.everplans.com/professional) who want to offer Everplans’ services to their clients. *Exponent Philanthropy Exponent Philanthropy is celebrating its 20th anniversary of helping to incorporate philanthropy into estate plans. Exponent Philanthropy works with individual and family philanthropists to help them achieve greater impact. They assist family foundations to reduce overhead and serve as an educational resource. Exponent philanthropy provides programming to philanthropists to educate them on foundation set up, rules and compliance. They will also work with philanthropists to assess the health of prospective donee nonprofits, and evaluate the impact of their giving. Visit their website, www.exponentphilanthropy.org, for a Ten Minute Impact Assessment, as well as information about upcoming local and regional programs. Annual membership is $750/year membership, but will be discounted to $650/year for new members who join by February 29, 2016 and mention Heckerling. Memberships have other benefits, such as D&O insurance at discounted rates. Advisors interested in being listed in Exponent Philanthropy’s professional advisors directory for a fee should contact Julie Stofer, Director of Marketing, at [email protected]. Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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*EY PLATINUM SPONSOR EY continues to grow its Family Office and Business Advisory services. They recently acquired a multifamily office, broadening and deepening their expertise in the area. The services EY provides to these clients include risk review, governance, technology search and selection, and set up and design (or restructuring, for established organizations). EY’s family office services are ideal for clients with at least $100MM of wealth, or $500MM to $1BN revenue. Robert A. “Bobby” Stover, Jr. is the Americas partner in charge of this group, and may be reached at [email protected] for more information, or visit www.ey.com. *Fi-Tek, LLC / FirstState Trust Company Fi-Tek, LLC provides wealth management software products and business solutions to providers of financial services and their clients. They support hundreds of banks, covering the US from Alaska to Florida, and hedge funds globally. HedgeTek offers solutions for hedge fund managers, keeping up to date with the unique needs of hedge funds, including book and tax accounting for monetized and unitized funds, and allocation and reporting tools. Fi-Tek and Rockefeller & Co. recently acquired Rockit Solutions, significantly enhancing their capabilities in the family office and technology space. Visit www.fi-tek.com for more information. *Fidelity Charitable SILVER SPONSOR Fidelity Charitable has expanded into the unique asset realm in order to assist with clients who wish to donate assets other than stock or publicly traded stock (although they continue to perform those services, as well). Accompanying their ability to accept unique assets into their funds, they have built out their complex asset team, as well as their relationship management team. Additionally, Fidelity Charitable has partnered with other advisors to introduce 5 new non-Fidelity funds, including a socially responsible investing fund. Visit their newly redeveloped website, www.fidelitycharitable.org, for more information about these new offerings, and check in after mid-January for updated numbers on 2015 contributions and donations. *FMV Opinions, Inc. GOLD SPONSOR FMV Opinions specializes in producing expert, defendable valuations of businesses, real estate and asset holding entities. They have the depth and expertise to defend their appraisals before the IRS or Tax Court. Their website, www.fmv.com, provides up-to-date information, summaries and analysis of Tax Court cases, and articles on items such as discounting and the current Redstone line of cases. Sign up for FMV alert to stay on top of recent developments. Contact Miranda McCray at [email protected] for more information. *Foundation Source Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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Experience the technological strides Foundation Source has implemented over the past few months at www.foundationsource.com. Their expense and reporting modules have been revamped. Perhaps even more exciting, Foundation Source has launched FS Forum, a new client portal allowing their 1300 private foundations and 6600 technology users to keep up with news from the philanthropic community, access educational information and whitepapers, and perhaps most importantly, participate in an interactive forum where they can ask questions, provide commentary, and find opportunities to collaborate with like-minded users. This forum allows clients to become more involved in the philanthropic community in a personal way that meets their specific interests. For the professional advisor, Foundation Source also has a new series on entrepreneurial philanthropy. Sign up for their monthly newsletter to stay abreast of current philanthropic topics. *Gillett Publishing LLC/GEMS – Gillett Estate Management Suite GEMS provides 706 and 709 return preparation and trust accounting software. GEMS has already incorporated the requirements of new Form 8971, Information Regarding Beneficiaries Acquiring Property from a Decedent – the work is done for you! Now, they are simply waiting for the IRS to issue the final form. Gillett Publishing is offering a 25% discount on new licenses through the end of January. Contact them at [email protected] to take advantage of this great offer. *HeirSearch.com Look for heirs a better way. HeirSearch.com, a division of International Genealogical Search Inc. (IGS), provides international beneficiary and heir location services. Unlike other search firms, they do not charge based on a percentage of the estate. HeirSearch strives to provide education to attorneys, trust officers, financial planners, and anyone else who needs information about finding beneficiaries and heirs. To see seminars offered by HeirSearch and for more information, contact Suzanne Simpson, VP Sales & Marketing, and visit www.heirsearch.com. *Henley & Partners GOLD SPONSOR Henley & Partners focuses on citizenship and residency planning, helping high net worth and ultra high net worth clients obtain a second citizenship. Second citizenship offers several benefits, and can include access to the EU and safer travel. They are also able to assist Americans who are looking for dual citizenship without a residency requirement, and have a depth of knowledge about countries where this is possible. Visit www.henleyglobal.com to learn more about how Henley & Partners can assist your clients. Published by the American Bar Association Section of Real Property, Trust and Estate Law ©2016. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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On-Site Reporters Our on-site local reporters who will be present in Orlando in 2016 are Joanne Hindel Esq., a Vice President with the Fifth Third Bank in Cleveland, Ohio; Kimon Karas Esq., an attorney with McCarthy, Lebit, Crystal and Liffman Co. LPA in Cleveland, Ohio; Craig Dreyer Esq., an attorney with Clark Skatoff, PA in Palm Beach Gardens, Florida; Herb Braverman Esq., an attorney with Braverman & Associates in Orange Village, Ohio; Kristin Dittus Esq., a solo attorney in Boulder, Colorado; Michael Sneeringer Esq., an attorney with Akermn, LLP in, PA in Naples, Florida, Michell R. Mieras, a Senior Trust Officer with Bank of the West in Denver, Colorado, Beth Anderson Esq., an attorney with Wyatt, Trrant & Combs, LLP in Louisville, Kentucky, Bruce A. Tannahill Esq., a Director of Estate and Business Planning in the Mass Mutual Financial Group in Phoenix, Arizona, and Patrick DuffyEsq, an attorney the Holland & Knight in Tampa, Florida. =============================================================== The editor again in 2016 will be Joseph G. Hodges Jr. Esq., a solo practitioner in Denver, Colorado. He is also the Chief Moderator of the ABA-PTL discussion list.


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heckerling 2016 report no. 11 - american bar

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