Category Archives: probate

Charitable Gifts in Your Estate Plan: To Restrict or Not to Restrict?

Explosion_138,_Force_0Imagine you are preparing your Estate Plan.  You wish to make a gift to a certain charity –  the hospital that cured your cancer or your alma mater, for example.  You have a particular cause in mind – to support a certain physician’s research or to fund scholarships for needy students, for example.  Do you restrict the charitable gift to that particular cause?  Or do you give an unrestricted gift and allow the charity to use it for any charitable purpose?

Many clients are tempted to restrict their charitable gift.  I suspect they believe this will ensure that their gift is used in a manner that reflects their specific wishes.  But my advice is often to do the opposite – to give an unrestricted gift that allows the charity to decide how best to use it when the time comes.

There are several reasons why.  First, times change.  The passage of time or the changing of circumstances can cause restricted gifts to become outdated, impracticable, or sometimes even illegal, making the gift unusable or of less value to the charity.  Unrestricted gifts give the charity the flexibility and control to use the gift in the manner that best suits its purpose or mission.  Second, restricted gifts may generate higher administrative costs for the charity making less of your gift available to further the charity’s purpose.  Third, restricted gifts may ultimately require a court legal action by the charity – a petition for cy pres or equitable deviation – that can be a costly and time consuming distraction.

And while I strongly believe this is sound legal advice, that I stand by, it raises the risk that a donor’s gift ends up being used for a purpose wildly different from what the donor may have wanted.  And that risks upsetting a donor’s heirs or creating tension between them and the charity.

Here is an interesting case study.  The University of New Hampshire has recently taken a lot of heat for its use of a large, unrestricted charitable gift from the Estate of Robert Morin.  Morin spent his career working as a UNH librarian.  I doubt he was highly paid, but he was secretly a “millionaire next door” and left his $4 million fortune to UNH without restrictions.

As it was legally entitled to do, UNH used the gift as it saw fit.  $100,000 went to the library, $2.5 million went to upgrade the UNH career center, and $1 million went to purchase a new high-definition video scoreboard for the UNH Wildcats’ stadium.  The rest is still unallocated.  UNH had spent the last several years upgrading its football program and stadium, and the purchase of the scoreboard was I assume an expense that UNH believed was important for raising the school’s stature.

Many have objected to the purchase of the scoreboard as antithetical to the way Morin lived his life.  But this is not the legal standard.  What UNH did was not illegal or even unethical.  Also, there is no real evidence that Morin would have disagreed.  He could have restricted his gift, but chose not to.

When making charitable gifts in your Estate Plan, consider carefully whether to restrict them.  And if restrictions are important to you, there may be a way to work closely with the charitable institution to accomplish your goals, without limiting its opportunities.

Image from wikipedia, Erie Explosion v. Fayetteville Force.

Hugh Hefner and Inter Vivos QTIP Trusts

HefnerThe iconic Hugh Hefner, founder of Playboy magazine, died last week.  Hefner was married three times and had four children, two from each of his first two marriages.  He was also survived by his current wife, 31 year old Crystal Harris, whom he married in 2012, at the age of 86.

There is no doubt that Hefner’s estate is large, and likely includes interests in Playboy Enterprises, Inc., the privately held company he founded.  How will his estate be divided?  That depends on his Estate Plan.

If Hefner planned properly, we’ll never know the details of his Estate Plan.  Rumor has it Crystal Harris will not receive any assets from the Estate, but that Hefner nonetheless provided for her.  But how?  My theory is that before his death Hefner established and funded a Trust for Crystal’s benefit that would provide for her after his death.  This kind of trust is known as an irrevocable inter vivos QTIP Trust.  (My husband tells me in this context it sounds like something dirty.  It’s not.)  QTIP stands for Qualified Terminable Interest Property.   Inter vivos means it was established during the donor’s lifetime.  Irrevocable means it cannot be revoked or amended.

There are several features of the inter vivos QTIP Trust that make it a good estate planning strategy for Hefner (and perhaps others like him).

First, a QTIP Trust is eligible for the unlimited marital deduction, and thus is not subject to estate taxes at Hefner’s death.  In addition, Hefner’s gifts to the trust during his lifetime were not taxable gifts and thus did not deplete his gift/estate tax exemption.   What is left in the trust at Crystal’s death will be included in her estate, but may be fully protected by her own estate tax exemption so that no estate taxes will be due.

Second, for the trust to qualify for the marital deduction, Crystal must be the sole beneficiary.  In addition, she must receive all the net income from the trust, and may receive principal.  These Internal Revenue Code requirements are likely consistent with Hefner’s goals in providing for Crystal.

Third, when the trust was established, Hefner set its terms.  This means Crystal does not control the assets.  In addition, Hefner directed how the assets remaining in the trust at Crystal’s death will pass.  Thus, he could ensure that they pass to his children or grandchildren.  If he had left assets outright to her, they could pass to her future husband or children.  For this reason, QTIP Trusts are a great planning strategy for couples in second or third marriages.

Fourth, the QTIP Trust may be a grantor trust, so that Hefner – the donor – paid the income taxes on the trust income during his lifetime.   This ensures that the income taxes do not deplete what is available for Crystal after his death.

Fifth, the QTIP Trust is separate from Hefner’s other estate plan documents.  This creates less risk of a Will contest or other conflict during estate administration.

Inter vivos QTIP Trusts are not for everyone, but they can offer some clients significant benefits and estate tax savings.

Image from flickr, Alan Light.

Never Trust a Yalie: The Estate of Elihu Yale

yale-university-1604158_960_720Elihu Yale was a colonial era merchant who amassed considerable wealth at the end of the 17th century as President of the East India Company’s post in Madras, India.  He was one of the earliest benefactors of the Collegiate College in New Haven, Connecticut, now Yale University and named for him.  The story behind the naming of the University involves an interesting quirk in the administration of Yale’s estate.

In 1717, the founders of Collegiate College sought a gift from Yale to establish a college in Connecticut.   The founders approached Yale not only because of his fortune, but also because he had no descendants to inherit his wealth and he had familial ties to Connecticut.  Yale agreed, and soon thereafter, he donated to the College a box of books, a picture of King George, and English goods valued at 200 British pounds sterling, all valued at 800 colonial pounds.  It was a large gift, although not enough to establish an endowment.  Yale also promised the College “a succession of solid and lasting benefits”, including a gift at his death.  As a result, in 1718, Collegiate College became Yale College.

Yale sent one more gift to the College in June 1721, one month before his death.  But the big gift the College expected from Yale’s estate never came.  The reason?  At the time of his death Yale’s Will – which left a gift to the College – remained unsigned.   Yale’s widow was named Executor of his estate, and the entirety of his estate – less debts – passed to her.  Yale College objected in probate court but was unsuccessful.  The College’s founders advocated for receipt of a portion of the estate for over two years following Yale’s death, but his widow, the daughters from her first marriage, and their husbands – all wealthy as well – refused to settle or agree to make any gifts.  In the end, no part of the estate passed to the College.

Take it from this Harvardian – don’t make the same mistake as Elihu Yale.  Have in place a quality estate plan that sets forth your wishes before your death.  And be sure to sign it.

(I give credit for this interesting history to my friend and colleague, Megan Lenzi, who learned a “cleaned up” version of this story while touring Yale with her son this summer.  Apparently, in traditional Ivy League fashion, the school has chosen to gloss over this history.)

The facts in this post came from Hiram Bingham’s article “Elihu Yale” published by the American Antiquarian Society in 1937. 

Don’t Take Your Testamentary Freedom for Granted

river-frontage-233041_960_720Despite recent events, the United States is still the land of the free.  And one of the (less discussed) freedoms we enjoy in the U.S. is the freedom of testation – the freedom to dispose of our assets at our death however we wish.  With few exceptions, we in the U.S. are free to disinherit children, leave insufficient assets to a spouse, and benefit pets rather than family members, to list a few examples.  The one notable exception is that most states (including Massachusetts) have an elective share statute which ensures that a spouse cannot be totally disinherited.

While this “testamentary freedom” may seem like common sense to us, it is unusual and does not exist in most countries around the world.  In much of Latin America, contintental Europe, the Middle East, and Asia, “mandatory inheritance” or “forced heirship” laws require that spouses and descendants (and sometimes even parents or siblings) inherit, regardless of what a decedent’s Will states.  These laws are especially common in civil law jurisdictions.  The rationale of these laws is the legal theory that family members have an automatic right to inherit property and that decedents have an obligation to adequately provide for them.  In most countries, the forced heirship law applies to a portion of the estate (e.g., 1/3), although it may be a large portion.  The decedent may dispose of the rest as he or she wishes.

In the United States, Louisiana is the only state with a forced heirship law.  But even Louisiana’s law is limited in that it only prohibits the disinheritance of children who are under age 24 or who are disabled or incapacitated.  Puerto Rico also gives a decedent’s children the right to inherit a portion of the Puerto Rico estate, provided that a surviving spouse retains a usufruct (or a life estate) in the property.

For U.S. clients who own real property abroad, it is important to consider forced heirship laws of the country where the property is located as part of your estate planning.  Otherwise that property may pass under that country’s forced heirship law, and not as designated in your estate plan.

Here is an example that came up recently in my practice:

Sarah died as a Massachusetts resident owning a valuable vacation home in Puerto Rico.  She was survived by her husband, Jack, and three grown children.  Her Massachusetts estate plan left all of her assets to Jack.  Nonetheless, Puerto Rico’s forced heirship laws required that a portion of the Puerto Rico home pass to the three children.  Jack retained only a usufruct, or life estate.  The property was sold, but only a part of the proceeds passed to Jack.  The rest passed to the children.  It was not the result Jack wanted, or Sarah would have wanted.

If you own real property in a forced heirship jurisdiction, you should discuss with your estate planning attorney how that property will pass after your death under that jurisdiction’s laws.  In some cases, there may be an opportunity, with advance planning, to circumvent the laws and obtain the result you want.  For example, you may want to form an entity to own the property.

Estate Planning in History: Boston’s “Lotta Fountain”

Lotta_Fountain_-_IMG_3787Looking to do some local sightseeing this summer that combines your love of Boston history and charitable trust administration?  Look no further!  Visit the (recently renovated) Lotta Fountain, a drinking and play fountain for dogs, located on Boston’s Charles River Esplanade.

The Lotta Fountain was a charitable gift from a Trust established under the Will of Lotta Crabtree.  Lotta Crabtree was a very successful 19th century vaudeville star.  At the height of her career she was the highest paid actress in the U.S. and became one of the wealthiest entertainers of her day.  At the time of her death in Boston in 1924, she had amassed an estate of over $4 million (worth over $50 million today).  She never married or had children.  In her Will, she established and funded eight charitable trusts for various purposes, including animal welfare.  One of those charitable trusts was used to establish a $300,000 fund to benefit animals.  That fund led to the design and building of the Lotta Fountain in 1939.

The Fountain later fell into significant disrepair in large part because the Trustees mismanaged the trust and charged excessive fees which depleted the fund’s assets.  In 2004, a Massachusetts court held that the Trustees breached their fiduciary duties.  They were removed and reprimanded, and a surcharge for the excessive fees was imposed.

The Esplanade Association and Boston’s Department of Conservation and Recreation raised money to repair and renovate the Fountain.  It opened June 15.  It will now fulfill Crabtree’s charitable intention by serving as a drinking and play space for Boston’s four legged residents.  If you wish to visit, the fountain is located on the Esplanade between Berkeley and Clarendon Streets, near the Arthur Fiedler Bridge.  I have not yet been there, but I think it is worth a visit this summer.

Image of fountain from wikipedia commons.

Estate Planning in Pop Culture – HBO’s Wizard of Lies

MadoffI recently watched “Wizard of Lies”, the HBO movie about Bernie Madoff.  The movie is based on the book of the same title by Diana Henriques.  Unlike the book, the movie focuses on the Madoff family, not on Bernie’s crime.  It’s about Bernie, Ruth, Mark and Andrew Madoff, their relationships, and the impact of Bernie’s betrayal on those relationships.  To be honest, I found the movie a bit slow, uninformative, and disappointing.  It’s nonetheless worth watching (if only because Robert De Niro’s Bernie is fantastic).

There are obvious lessons for all to learn from the Madoff story.  Know where and how your money is invested.  Don’t trust a financial advisor simply because of his reputation or charisma.  Investments with impressive returns may be too good to be true.

There was one scene in the movie I found particularly interesting because it offers an additional, less obvious, lesson about estate and family business succession planning.  The scene starts 41 minutes in.  It takes place in July 2008.  The market is crashing and time is running out for Bernie and his ponzi scheme.  The Madoffs throw a large party on the lawn at their Montauk beach house.  At the end of the party, after the guests have left, sons Mark and Andrew approach Bernie to talk.  They know nothing of his ponzi scheme at this point.  They are concerned about Bernie’s estate and business succession plan, of which they’ve been told nothing.  Their basic question for Bernie – “What if something happens to you?”  We sense that they’ve asked this before.

The conversation does not go well.  Bernie gets immediately angry.  He assures them that Frank DiPascali, Bernie’s “assistant” and accomplice, will take care of everything.  He says there are instructions in his safe deposit box.  He advises them to call his attorneys.  Bernie offers no answers or plans.  Ruth plays no role in the conversation.  Mark and Andrew walk away disappointed and angry.  A lot about this conversation went wrong.

Although the circumstances for the Madoffs are highly unusual, what went wrong in this scene offers a universal lesson for all.  It’s not only important to have a good estate plan in place, but to be honest and forthcoming with your spouse and adult children about the plan.  This is especially true for those who own a family business. Discussions about estate planning should happen in most families, but often never do.  And while the conversation may be wrought with issues and emotions, they should not derail it.  In addition to preparing estate plan documents, a good estate planning attorney can act as an advisor or informal mediator to help to facilitate these discussions within a family.  By relying on an estate planning attorney in this way, you may be able to avoid bigger estate problems, including litigation, later.

Image of Robert De Niro as Madoff from vimeo.

Gifts to 529 Plans – Have Your Cake and Eat it Too

food-1281766_960_720Lifetime gifting to children and grandchildren is an important estate planning tool that can result in substantial estate tax savings.  For that reason, we often recommend it to wealthy clients.  Typically, for gifted assets to be excluded from a donor’s estate at death and not subject to estate taxes, the gift must be complete and irrevocable.  That means that once a gift is made the donor cannot access or control the gifted assets.  Even clients with substantial assets may be reluctant to make gifts because of this loss of access and control.

But there is one type of gift that allows donors to make lifetime gifts that will be excluded from their estates without losing access or control – gifts to Section 529 plans.  529 plans are tax-advantaged investment accounts in which a donor sets aside money to fund a child or grandchild’s college education.  Contributions to a 529 plan of which the donor is the owner (sometimes called the “participant”) are not included in the donor’s estate and will not be subject to estate taxes.  Yet, importantly, the donor, as the account owner, retains control over the assets.  In addition, the donor can reacquire the assets in the future (provided he pay income taxes and a penalty).  Because the donor retains access and control, gifts to 529s allow the donor to “have his cake and eat it too.”

There are some disadvantages to consider.  Distributions from 529 plans must be used on qualified higher education expenses and if not, are subject to penalty.  Assets in a 529 account may impact the student’s eligibility for financial aid.  For more on that, see my prior post.  Also, there is one exception to the estate exclusionary rule.  A donor may frontload a 529 account with five times the annual gift tax exclusion amount (currently $14,000), for total gifts of $70,000 per donor, but if he dies within five years following the contribution, a portion of the gift will be included in his estate and subject to estate tax.

For clients interested in reducing estate taxes but reluctant to lose access to and control of assets, lifetime gifts to 529 plans may be an appealing way of making lifetime gifts.  In addition, for emotional reasons, the opportunity to fund a grandchild’s college education may be especially meaningful.   529 accounts are also easy and inexpensive to set up and administer, and for those reasons can be a great way to make gifts.

Image from pixabay.

Are Electronic Wills the Wave of the Future?

8973427921_42b22809be_bFor a Will to be valid and self-proved in Massachusetts, it must be in writing, signed by the testator, signed by two (2) witnesses, and signed and stamped by a Notary Public.  This means that you, two (2) witnesses, and a Notary Public must sign your Will with a pen… in handwriting… on paper.  Electronic Wills or electronically signed Wills are simply not valid.

In addition, if you die as a resident of Massachusetts, your original Will in paper form will be filed by mail or hand delivery in Probate Court, if a Personal Representative of your estate is to be appointed.  (If the original is unavailable, a paper copy may be filed, but the probate process becomes more difficult and lengthy.)   This means that your original Will in paper form must be kept safely on file either in your attorney’s office or elsewhere.  It is also important to have only one original paper Will.

In a world in which much of our lives are electronic, I’ve asked myself on many occasions – is it time to dispense with these formalities?  Aren’t they out of date?  We pay our bills electronically, send checks electronically, manage our finances electronically, and prepare and file tax returns electronically.  Why not sign and store electronic Wills?

Not surprisingly, others have asked the same question.  The State of Nevada passed a statute allowing electronic Wills way back in 2001.  So far other state legislatures have not following suit.  In 2013, an Ohio Court ruled that a Will written and signed on a computer tablet was valid under Ohio’s probate code.  There are currently two bills under debate in Florida that would legalize electronic Wills.  In addition, the Uniform Law Commission has formed a Drafting Committee on Electronic Wills to draft model legislation for states.  Legislative efforts to pass laws allowing electronic wills have been supported by lobbyists from online estate plan document providers (like and Legal Zoom) whose business no doubt suffers from state laws that require Wills to be in writing.

Massachusetts has always been slow to adopt changes to its probate law, and for that reason I suspect electronic Wills are not in our near future.   The time will come, but for now, be sure your Massachusetts Will is in writing, properly executed, and stored safely in its original form.

Image from flickr by Judit Klein


Estate Planning in History: The 125 year dispute over the Will of James K. Polk

Presidents_James_K_PolkBelieve it or not, Tennessee lawmakers are debating a bill that calls for exhuming the body of President James K. Polk, currently buried on the grounds of the Tennessee State Capitol in Nashville, and moving it to a new “final” resting place fifty miles away in Columbia, Tennessee, Polk’s hometown. The bill arose from requests by the Polk Tomb Relocation Committee of the Columbia City Council and the Polk Home and Museum. The debate has reopened a 125 year old dispute over one provision of Polk’s Last Will and Testament.

In case you’ve forgotten your 5th grade history, here is a bit of background. James K. Polk was the 11th President of the United States. He served one term from 1845 to 1849. Though mostly unremembered, Polk did some significant things during his presidency. He led the U.S. through the Mexican-American War that resulted in the addition of the American Southwest. He coaxed the British into selling us the Oregon Territory. And he oversaw the establishment of the U.S. Naval Academy and the Smithsonian. Polk died shortly after he left office. His wife, Sarah, died in 1891. And that is when the story gets interesting….

A few months before his death, Polk, a former lawyer, prepared and signed his own Last Will and Testament. In that Will, Polk included an important provision that did two things. First, it stated Polk’s desire that Sarah and he be buried on the grounds of their home, Polk Place, in Columbia, Tennessee. Second, it devised Polk Place to the State of Tennessee to be held in Trust to be continually occupied by his blood relatives as designated by the State forevermore. He named the “public authorities” of the State as Trustee.

Polk was buried on the grounds of Polk Place and remained there during his surviving wife’s lifetime, while she resided in the home. However, after her death in 1891, a probate dispute arose among Polk’s heirs. The dispute was settled by a Tennessee probate court. The court ordered that the provision in the Will regarding Polk’s burial and the bequest and Trust for Polk Place was invalid because it required that Polk Place be held in trust in perpetuity (i.e., forever) in violation of Tennessee law. Even today, most states have a “Rule Against Perpetuities”, which prohibits trusts from being held in perpetuity. As a result, in 1893, a court ordered that Polk Place be sold and Polk’s body be moved to the Tennessee State Capitol where it has remained… until now.

The Columbia City Council, the Polk Home and Museum, and some Polk history enthusiasts now seek to move the body back to Columbia. Among their reasons is that internment in Columbia, near what used to be Polk Place, will better serve the wishes Polk expressed in his Will.

It remains to be seen what will happen. The bill still needs to be approved by the Tennessee House of Representatives and the Tennessee Historical Commission.

The moral of the story is this. Estate Planning is not a do-it-yourself job, even for trained lawyers and former Presidents. If you want to avoid years (or decades or centuries) of probate litigation and hassles, use a qualified and knowledgeable estate planning attorney. (And if you find yourself in Nashville this Spring or Summer, visit the Polk burial site. It may be your last chance.)

Matthew Brady image of Polk from Wikipedia Commons.

Cy Pres vs. Equitable Deviation: Explanations and Examples

HarryHoudini1899 (1)There are two related legal doctrines in Massachusetts that allow a court to modify the terms of a charitable gift – the doctrine of Cy Pres (see pray) and the doctrine of Equitable Deviation.  In general, these doctrines apply when the continued administration of a charitable trust has become impossible, illegal or impaired as a result of the passage of time and/or changes in circumstance.  While the two doctrines are certainly close cousins, they are not identical.

Doctrine of Cy Pres –  A court may amend a charitable trust if it has become impossible or impracticable to give effect to the trust as it was written.  For the doctrine of cy pres to apply, the court must find that the donor had a general charitable intention and/or public charitable purpose.  In applying the doctrine, the court must amend the trust in a manner that most closely promotes the donor’s original intention.  For cy pres to apply, the trust instrument must not contain a gift-over (i.e., an alternate direction for the gift in the event the trust failed).

For example, in Jackson v. Phillips, a Massachusetts court applied cy pres to amend a charitable trust established by Francis Jackson, a Boston slavery abolitionist.  Jackson’s trust was intended to support the creation of “a public sentiment that will put an end to negro slavery in this country.”  After slavery was abolished, that purpose was no longer relevant.  The court ordered that the trust instead be used to benefit persons of African descent.

Doctrine of Equitable Deviation – A court may modify the subordinate and/or administrative terms or restrictions of a charitable trust if compliance with such terms or restrictions has become impossible, illegal, or due to changed circumstances impairs the accomplishment of the donor’s charitable purpose.  In applying this doctrine, the court must order a modification that furthers the donor’s purpose.

For example, in The Isabella Stewart Gardner Museum, Inc. v. Attorney General, a Massachusetts court ordered deviation from restrictions in the Will of Isabella Stewart Gardner.  Gardner’s Will provided for the establishment and continuation of the museum, its art collection, and its endowment, but imposed stringent administrative restrictions on their use, including limitations on renovations to the museum building.  Eighty years after Gardner’s death, these restrictions impaired the functioning of the museum.  The court determined that removing some of the restrictions was necessary to further Gardner’s purpose.

In practice, the doctrines can be difficult to distinguish.  The differences can be subtle.  In general, cy pres involves a change to the overriding purpose of a charitable trust, while deviation involves a change to its administrative terms only.  The difference may also be in the degree of change.  The change that results from cy pres is typically substantial or fundamental, while the change that results from deviation generally involves only subordinate trust terms.  As a result, the Attorney General and a court may impose a less exacting review in a deviation action.

Until recently, these doctrines existed in Massachusetts only as part of the common law.  The Massachusetts Uniform Prudent Management of Institutional Funds Act (“UPMIFA”), which became effective in 2009, codified both doctrines so that they apply to restricted charitable funds held by charitable organizations, in addition to trusts.  The Massachusetts Uniform Trust Code, which became effective in 2012, codified the doctrine of equitable deviation for charitable trusts.

These doctrines can be essential in providing needed flexibility for continuing charitable trusts, funds, and endowments that have become outdated and unusable.  Application of the doctrines may benefit both the current beneficiaries as well as further the donor’s original charitable intent, and for that reason are often uncontested.

Image of Harry Houdini from wikipedia commons