Planning with Trusts

This year’s Institute includes a new series of programs on Planning with Trusts. This series examines the impact of the new Uniform Directed Trust Act (including the planning and drafting implications), fiduciary income tax issues, preparing fiduciary accountings to mitigate risk, the care and feeding of dynasty trusts, the scope of trustee discretion, and trust asset protection through the lens of the drafting attorney, the fiduciaries, and the creditors.

Tuesday, January 23, 2018 (10:55 – 11:45 a.m.)
Care and Feeding of a Dynasty Trust: High Protein or Low Fat?
Diana S.C. Zeydel

Tax law and concerns about asset protection have driven estate planners to create trusts with longer and longer durations. Keeping these trusts healthy can be challenging. How do we build muscle to withstand challenges? Should we go lean if the estate and GST taxes are repealed? What are the best practices to achieve a fit and flexible trust in uncertain times?

Tuesday, January 23, 2018 (2:00 – 2:50 p.m.)
Estate Planning in Anticipation of a Contest or a Difficult Beneficiary
S. Andrew Pharies

This session will focus on practical issues in structuring an estate plan to withstand a potential contest or a beneficiary likely to disrupt the post-death administration. It will focus on enhancing the enforceability of no contest clauses as well as structuring an estate plan to mitigate fiduciary risk.

Wednesday, January 24, 2018 (9:50 – 10:40 a.m.)
Theory Meets Reality: A Practical Look at the U.S. Income Taxation of U.S. Grantors and Beneficiaries of Foreign Trusts
M. Read Moore

Differences in trust law and trust administration outside of the United States often make advising U.S. clients on U.S. tax issues related to foreign trusts quite challenging. This presentation will address the principal U.S. income tax issues affecting U.S. settlors and beneficiaries of trusts administered outside the United States with an emphasis on frequent conflicts between U.S. tax law and the realities of trust law and trust administration outside of the United States.

Wednesday, January 24, 2018 – Fundamentals Program (2:00 – 5:20 p.m.)
Selected Subchapter J Subjects: From the Plumbing to the Planning, Preventing Pitfalls with Potential Payoffs
Alan S. Halperin, Amy E. Heller

Understanding the rules of Subchapter J is essential for every estate planner. The program will provide an overview of Subchapter J, including the rules related to grantor trusts and non-grantor trusts. The panelists will address potential pitfalls and planning opportunities that permeate this area.

Wednesday, January 24, 2018 – Special Session I-C (2:00 – 3:30 p.m.)
Two Systems Separated by a Common Language: U.S. Tax Law Meets Non-U.S. Trust Law
M. Read Moore, Alec R. Anderson

This session will consider the application of U.S. income tax laws to trusts administered outside the United States in the context of non-U.S. trust law and typical administrative practices of non-U.S. trustees, including issues related to the establishment and settlement of non-U.S. trusts, trust administration outside the United States, distributions from foreign trusts, and termination of foreign trusts.

Wednesday, January 24, 2018 – Special Session I-D (2:00 – 3:30 p.m.)
Review of the Past Year’s Significant, Curious, or Downright Fascinating Fiduciary Cases (at least it seems to me)
Dana G. Fitzsimons, Jr. 

This session will review recent cases from across the country to assist fiduciaries and their advisors in identifying and managing contemporary challenges.

Wednesday, January 24, 2018 – Special Session I-E (2:00 – 3:30 p.m.)
Beyond the Special Needs Trust: Essential New Developments in Special Needs Planning
Katherine N. Barr, Kristen M. Lewis, James M. McCarten

This panel will discuss new laws, regulations and options that estate planners must know to plan effectively for a secure quality of life for a person with a disability.

Wednesday, January 24, 2018 – Special Session II-A (3:50 – 5:20 p.m.)
Show Me the Money! Settlors, Beneficiaries and the Dynasty Trust
Diana S.C. Zeydel, Todd A. Flubacher, Barry F. Spivey

Flexibility or no flexibility for dynasty trusts? Can we solve for settlor intentions, beneficiary predilections, tax considerations, and state law limitations without fiduciary litigation? This session will examine the options.

Wednesday, January 24, 2018 – Special Session II-E (3:50 – 5:20 p.m.)
Case Studies in Preventing Post-Death Administrative Nightmares
S. Andrew Pharies, David A. Baker, Jo Ann Engelhardt

This panel discussion will examine real and hypothetical cases that resulted in post-death administrative nightmares and attempt to reverse engineer those cases to determine what, if any, preventative measures could have been taken at the estate planning stage.

Thursday, January 25, 2018 (9:50 – 10:40 a.m.)
Trust Administration Takes a Village? The New Uniform Directed Trust Act Paves the Way for Creative and Thoughtful Divided Trusteeship
Robert H. Sitkoff

The duties and liabilities of directed trustees and trust directors remain a source of confusion. This session will canvass the new Uniform Directed Trust Act, explore how the Act simplifies drafting and administering directed trusts, and highlight some of the most common and helpful uses of directed trusts in the current planning environment.

Thursday, January 25, 2018 – Special Session III-A (2:00 – 3:30 p.m.)
Trustees, Beneficiaries, Directors! The Uniform Directed Trust Act Can Conjure a Hollywood Ending from Even the Most Difficult Family Script
Robert H. Sitkoff, Turney P. Berry, James M. Marion, Susan D. Snyder

After three years of collaborative effort, last summer the Uniform Law Commission approved the Uniform Directed Trust Act. This panel will explore the effective use of directed trusts, including fiduciary and tax issues, from drafting, administration, and beneficiary points of view in light of the new uniform act and existing state statutes.

Thursday, January 25, 2018 – Special Session III-B (2:00 – 3:30 p.m.)
Trust Asset Protection Through a Tri-Focal Lens
Daniel S. Rubin, Terrence M. Franklin, Michael M. Gordon

This program will address the asset protection afforded beneficiaries through trusts from the unique and sometimes conflicting perspectives of (i) the drafting attorney, (ii) the trustees and other fiduciaries administering the trust, and (iii) those creditors seeking to reach the trust assets.

Thursday, January 25, 2018 – Special Session IV-B (3:50 – 5:20 p.m.)
All Present and Accounted For: Proactively Preparing Fiduciary Accountings to Facilitate Pre- and Post-Mortem Planning and Mitigate Risk
Joshua S. Rubenstein, Scott T. Ditman

The world is becoming more litigious, especially in the private client arena. Fiduciary accountings, when collaborated on by legal and accounting professionals, not only can protect fiduciaries and the professionals who represent them from litigation, but they also can form the basis for innovative win-win solutions when litigation occurs by distinguishing accounting from tax income, reallocating receipts and expenses between income and principal, facilitating pre- and post-mortem estate planning, and mitigating income and transfer taxation.

Thursday, January 25, 2018 – Special Session IV-D (3:50 – 5:20 p.m.)
How Much and When? A Panel Discussion on the Legal and Practical Considerations of the Exercise of Discretion
Amy K. Kanyuk, William T. Hennessey, R. Hugh Magill

This session will provide practical advice and guidance from the perspective of an estate planner, a litigator, and a trust officer regarding the exercise of a trustee’s discretion and the scope of a beneficiary’s rights with respect to a discretionary trust.

Friday, January 26, 2018 (9:50 – 10:40 a.m.)
Trustee Discretion: The Better Part of Valor or Vulnerability?
Amy K. Kanyuk

This session will focus on the challenges trustees face with respect to discretion over distributions, examining the scope and meaning of different types of discretion, and the interplay between a trustee’s discretion and a beneficiary’s rights and interests.