Probate and Property Vol 30 No 3

68 Pages·2016·4.79 MB·English

www.ambar.org/rpte
May/June 2016 Vol. 30 No. 3
A Publication of the Real Property, Trust and Estate Law Section American Bar Association
Cell Phone Towers
Do Not Affect
Property Values
ABA
SECTION OF REAL TRUST &
PROPERTY ESTATE LAW
Your Source for Success
The eLearning Program is a training series focused on the needs of new
lawyers and paralegals working in the areas of trust and estate law.
The ABA Section of Real Property, Trust and Estate Law is proud to con-
tinue our training series focused on new lawyers, paralegals, and others
working in the areas of Trust & Estate Law, with the 2016 program: More
Than the Basics: Estate Planning and Estate Administration.
Attendees of the eLearning Program will learn substantive legal and ethics
issues – as well as best practices – from leading industry professionals with
in-depth knowledge and hands-on experience in Trust & Estate Law. The
program will offer ten 60-minute eLearning sessions, and attendees can
register for the entire series or individual sessions.
Upcoming SeSSionS
Finance 101 for estate planners and paralegals: How to read
and interpret fnancial statements and balance sheets
Thursday, June 9, 2016
1:30 – 2:30 pm ET
Speakers:
Bruce Tannahill, MassMutual Financial Group, Phoenix, AZ
Stephen Bigge, Keebler & Associates, Green Bay, WI
Real estate basics for estate planning and administration paralegals
Thursday, July 14, 2016
1:30 – 2:30 pm ET
Speakers:
Derek Taylor, Michael Best & Friedrich LLP, Milwaukee, WI
Charles Delorey, Michael Best & Friedrich LLP, Madison, WI
estate Tax Return i (Form 709)
Thursday, August 11, 2016
1:30 – 2:30 pm ET
Speakers:
Marissa Dungey, Withers Bergman LLP, New Haven, CT
James Dougherty, Withers Bergman LLP, New Haven CT

Session 9: estate Tax Return ii (Form 709)
Thursday, September 8, 2016
1:30 – 2:30 pm ET
Speakers:
Toni Ann Kruse, McDermott Will & Emery, New York, NY
www.ambar.org/rpte
May/June 2016 Vol. 30 No. 3
A Publication of the Real Property, Trust and Estate Law Section American Bar Association
Features
10 Cell Phone Towers Do Not Affect Property Values
(Or the Case of Three Board Hearings and One
Temporary Tower)
By Richard A. Forsten, Wendie C. Stabler, and
Olufunke O. Fagbami
p. 22 22 Estate Planning for the Chronically Ill, Aging, and
Otherwise Vulnerable or Isolated Client
By Martin M. Shenkman
35 By the Way, What About the Post-Closing Credit
Enhancement?
By Frederick L. Klein and Kevin L. Shepherd
41 Bipartisan Budget Act Signifcantly Changes Social
Security Retirement Beneft Options
p. 44 By Steven A. Brand, David G. Freitag, Ron R. Robinson,
and Bruce A. Tannahill
44 Reappraisal of Ground Lease Rentals
By Jerome D. Whalen
53 Explaining Estate Funding with Hands-on Examples
By Paige K. Ben-Yaacov
p. 53
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de r o t s n i n a c i n o r t c e l ee s a b a t a d r o l a v e i r t e r m e t s y s t u o h t i w e h t s s e r p x e n e t t i r w t n e s n o c f o e h t n a c i r e m A r a B . n o i t a i c o s s A

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16 Keeping Current—Property
Letters to the editor
Adverse possession
In the January/February issue of Pro- place where it has seen any signifcant company does not need to keep
bate & Property, Adam Leitman Bailey use is in Massachusetts. an eye on the vast tracts of land in
and Matthew Engle published a very rural areas.
useful and accurate survey of adverse Prof. Orth’s reply:
possession in Eastern states—with Torrens title is hardly archaic. It’s the And a North Carolina property law-
one exception. In North Carolina there principal system in England, Canada, yer reported:
exists a little used but potentially very Australia, and New Zealand. Admit-
signifcant option to enter a title in tedly it never caught on in America, The Torrens System seems to be
the Torrens system of registered titles. partly due to opposition from the bar somewhat popular along the rural
N.C. Gen. Stat. ch. 43. Once registered, and title insurers. (Australia, I believe, coast. There are approximately 30
title cannot be lost to an adverse pos- recently refused to allow title insurance to 40 tracts in Washington County
sessor. Id. § 43-21 (“No title to nor right to be marketed there because it was that were Torrenized. I received a
or interest in registered land in dero- unnecessary.) similar report from the Register of
gation of that of the registered owner A title insurance lawyer in North Car- Deeds in Pamlico County.
shall be acquired by prescription or olina reported:
adverse possession”). See, e.g., Adams And from Minnesota Lawyers Weekly:
Creek Assocs. v. Davis, 746 S.E.2d 1 (N.C. Torrens registration has been used
App.), disc. rev. den. 748 S.E.2d 322 extensively in Eastern NC by tim- The primary Torrens jurisdictions
(N.C. 2013). ber companies for 2 reasons: (1) remaining in the U.S. are Massa-
because the boundary lines are chusetts, Minnesota, and Hawaii.
John V. Orth judicially determined, liability In the Twin Cities about 40% of
William Rand Kenan, Jr. Prof. of Law for double damages for wrongful the metro area is Torrens property.
University of North Carolina cutting of timber are all but elimi-
Chapel Hill, NC 27599-3380 nated and (2) because the statute Where it is used, the Torrens system
eliminates adverse possession, the is very important. n
Adam Leitman Bailey’s response:
Prof. Orth is discussing a law dealing
with the archaic Torrens registration A monthly webinar featuring a panel of professors addressing recent cases or
system (as compared to the normal issues of relevance to practitioners and scholars of real estate and/or trusts
title recordation system in general use
and estates. FREE for RPTE Section members!
in this country). That system was only
adopted in a few states in this country.
Register for each webinar at
Ten states retain it in some limited form.
The only state where it plays any sig- http://ambar.org/ProfessorsCorner
nifcant role is in Massachusetts. Some
states still have laws on their books Tuesday, June 14, 2016
addressing the issue of adverse posses- 12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
sion of Torrens land, even though the Ripped from the Headlines: Recent Cases/Issues of Interest
Torrens system is no longer in use. Andrea Boyack (Washburn University School of Law)
Nothing we have in the article is Christopher Odinet (Southern University Law Center)
incorrect, with some qualifcation. The Wilson Freyermuth (University of Missouri School of Law)
article states in the last paragraph
before the conclusion, “Massachusetts Tuesday, July 12, 2016
has a unique law stating that if a land
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
is registered, it cannot be possessed
Conservation Easements
adversely.” That law is referring to Tor-
Federico Cheever (University of Denver Sturm College of Law)
rens registration. The North Carolina
Nancy McLaughlin (University of Utah S.J. Quinney College of Law)
law that Prof. Orth mentions is iden-
Jessica Owley (SUNY Buffalo Law School)
tical to that Massachusetts law, and a
similar law is also on the books of Ohio
(RC 5309.89) and New York (RPL 401), Sponsored by the RPTE Section Legal
SECTION OF REAL TRUST &
in all three cases referring to Torrens Education and Uniform Laws Group PROPERTY ESTATE LAW
System registration of land. The only Your Source for Success
de h s i l b u P n i e t a b o r P & , y t r e ep m o u r l P o V , 0 3 o N 3 © 6 1 0 2 y b e h t n a c i r e m A ra B . n o i t ad ie c c o u s d s o A r p e R h t i w . n o i s s i m r e p
l l A s t h g i r . d e r v e s e r s i h T n o i t a m r o f n i r o y n a n o i t r o p f o e r e h t y a m t o n e b d e i p o c r o d e t a n i m e s s i d n i y n a mr o f r o y b y n a s n a e m r o n May/June 2016 3
de r o t s n i n a c i n o r t c e l ee s a b a t a d r o l a v e i r t e r m e t s y s t u o h t i w e h t s s e r p x e n e t t i r w t n e s n o c f o e h t n a c i r e m A r a B . n o i t a i c o s s A
Section offcer and council nominations
In accordance with Article 6, Section For the Real Property Division:
6.1(g) of the Bylaws of the ABA Section Kellye Curtis Clarke
of Real Property, Trust, and Estate Law, James Geoffrey Durham
the Nominations Committee presents Candace M. Cunningham
the following for offcer and council
member vacancies that will occur at the The following persons are nomi-
close of the Association year. nated to serve an initial three-year
The Nominations Committee, con- term on the Section Council:
sisting of Susan Talley, Chair, Gideon
Rothschild, Vice-Chair, Susan N. Gary, For the Trust & Estate Division:
Nancy R. Little, and Joseph Lubinski, Henry Talavera
met during the 2015 Fall Leadership Beth Wood
Meeting. The Committee interviewed Robert D. Steele
Section Section Offcers, Delegates, Council
members, Standing Committee Chairs, For the Real Property Division:
news and Editors of the Section’s publica- Nelse T. Miller
tions. The Committee also solicited
and received input from Section lead- Pursuant to Section 6.1(g) of the Sec-
ers who were unable to attend the tion Bylaws, a biographical statement of
Fall Leadership Meeting, as well as each nominated person follows.
other Section members. The Commit-
tee members participated in follow-up David J. Dietrich
conference calls and communications Dietrich & Associates, PC
among themselves and with proposed Billings, Montana
candidates. The Committee thanks all Nominated as Section Chair, term
those who met with the Committee and ending August 2017. Positions held
otherwise shared their insights about in Section: Chair-Elect, Vice-Chair,
the future leadership of the Section. Chair, and Co-Chair, Estate Plan-
The Committee hereby submits its ning and Estate Administration for
nomination of the following persons to Farmers and Ranchers Committee;
serve in the offcer capacities noted by Chair, Valuation of Business Prop-
their respective names: erty Committee; Assistant Secretary,
Trust and Estate Division; Member,
Section Chair: David J. Dietrich Committee on Committees, Mem-
Section Chair-Elect: Elizabeth C. Lee bership, and Planning Committees;
Real Property Division Vice-Chair: Vice-Chair, Trust and Estate Division
Jo-Ann M. Marzullo CLE Committee; Co-Chair, Prop-
Trust & Estate Division Vice-Chair: erty Preservation Task Force; Council
David M. English Member; Section Secretary; Mem-
Section Secretary: Robert C. Paul ber, Planning Committee; Member,
Section Finance Offcer: Corporate Sponsorship Committee;
Stephanie Loomis-Price Member, Special Committee on ABA
Section Delegate: Andrew F. Palmieri Relations.
Assistant Secretary (Trust & Estate
Division): Jessica A. Uzcategui Elizabeth C. Lee
Assistant Secretary (Real Property Womble Carlyle Sandridge & Rice
Division): Sterling Scott Willis Washington, D.C.
Nominated as Section Chair-Elect,
The following persons are re-nom- term ending August 2017. Positions
inated to serve a three-year term on held in Section: Vice-Chair, Real
the Section Council: Property Division; Section Secre-
tary; Member, Council; Co-Chair,
For the Trust & Estate Division: Standing Committee on Continu-
James D. Spratt ing Legal Education; Co-Chair, Real
Property Division Continuing Legal
Published in et a b o r P & ,y t r e p o r P oV lume 30, oN 3 © 2016 by the American Bar Association. Reproduced iw th permission.
4 n May/June 2016 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 iw thout the epx ress rw itten consent of the American Bar Association.
Education Committee; Member, Bylaws and Handbook Committee; Controversy Committee; Member,
Planning, Communications, and Council Member, Elder Law and Vice-Chair, and Co-Chair, Continu-
Corporate Sponsorship Standing Disability Planning; Member, Con- ing Legal Education Committee;
Committees; Member, Digital Signa- tinuing Legal Education Committee; Member, Nominations and Plan-
ture and E-Commerce Committees; Member, Study Committee on Law ning Committees; Group Vice-Chair
Chair, Construction and Mortgage Reform; Member, Publications and Group Chair, Income and Trans-
Lending Committee; Vice-Chair and Committee; Member, Diversity Com- fer Tax Planning Group; Council
Chair, Mortgage Loan Structure and mittee; Member, Section Advisory Member; Assistant Finance Offcer,
Origination; Section Liaison to Prop- Board; Member, Nominating; Vice- Finance Planning Offcer; Sec-
erty Records Industry Association; Chair, Bioethics; Co-Chair, Uniform tion Offcers Conference Liaison to
Member, Special Committee on ABA Acts for Probate & Trust Law; Mem- ABA Standing Committee on CLE
Relations. ber, Task Force on American Indian (SCOCLE).
Probate Reform; Member, Task Force
Jo-Ann M. Marzullo on USA Patriot Act and Gatekeeper Andrew F. Palmieri
Posternak Blankstein & Lund LLP Regulation; Member, Task Force on Saul Ewing LLP
Boston, Massachusetts Real Property Law School Curri- Washington, D.C.
Nominated for frst term as Section cula; Member, Intellectual Property/ Nominated for frst term as Sec-
Vice-Chair, Real Property Division, Patent Task Force; Section Delegate, tion Delegate, term ending August
term ending August 2017. Positions Council; Co-Chair, Diversity; Liai- 2019. Positions held in Section: Sec-
held in Section: Vice-Chair and Chair, son, Commission on Law and Aging; tion Chair-Elect, Section Chair, and
K-10 Emerging Issues; Member, G-2 Chair, Special Committee on ABA Past Chair; Section Representa-
Design and Construction; Vice-Chair, Relations; Member, Groups and Sub- tive to the SOC Decennial Review
G-2 Design and Construction Includ- stantive; Chair, National Conference Committee; Vice-Chair, H-1 Devel-
ing ADA Act; Member, Continuing of Lawyers and Corporate Fiducia- opment and Financing of Common
Legal Education; Chair, E-6 Property, ries; Co-Chair, Community Outreach. Interest Communities Committee;
Casualty & Other Non-Title Insur- Chair and Co-Chair, H-1 Develop-
ance; Group Chair and Vice-Chair, Robert C. Paul ment, Operation and Management
Commercial Real Estate Transactions Rockefeller Group Technology of Community Associations; Mem-
and Management Group; Vice-Chair, Solutions Inc. ber, H-6 Homeowners, Community
RP Division CLE; Co-Chair and New York, New York and Common Interest Community
Member, Corporate Sponsorship; Nominated for second term as Sec- Associations; Member, I-5 Collat-
Ex-Offcio, Council; RP Division tion Secretary, term ending August eral for Commercial Real Estate
Subcommittee Chair, Continuing 2017. Positions held in Section: Sec- Loans; Member, H-2 Sports, Enter-
Legal Education; Member, Planning; tion Secretary; Vice-Chair, Co-Chair, tainment, Gaming and Related Real
Liaison to SOC Task Force on Con- and Chair, Securitization and REITs Estate Issues; Member, I-5 Collat-
tinuing Legal Education; RP Division Committee; Associate Editor and eral for Commercial Real Estate
Subcommittee Chair, CLE; Member, Editor-in-Chief, Real Property, Trust Finance; Vice-Chair and Co-Chair,
Council; Member, Planning; Vice- and Estate Law Journal; Member, Vice- Division CLE; Member, Committee
Chair and Co-Chair, CLE; Member, Chair and Co-Chair, Publications on Committees; Co-Chair and Mem-
Groups and Substantive; Member, Committee; Member, Section Advi- ber, Membership; Chair, Fellows
Nominations Committee. sory Board; Member, Nominations Program; Vice-Chair, Co-Vice-Chair,
Committee; Member and Co-Chair, and Member, CLE; Member and
David M. English Special Committee on In-House Vice-Chair, A-1 Division CLE; Co-
University of Missouri School of Law Counsel; Member, Planning Com- Chair, RP Division CLE; Member,
Columbia, Missouri mittee; Liaison, ABA Working Group Planning; Member, Council; Mem-
Nominated for second term as Sec- on Corporate Counsel; Member, ABA ber, Intellectual Property/Patent Task
tion Vice-Chair, Trust and Estate Standing Committee on Publishing Force; SOC Task Force on Continu-
Division, term ending August 2017. Oversight; Council Member. ing Legal Education, Liaisons: ABA
Positions held in Section: Section Entities; Representative, Real Prop-
Vice-Chair, Trust and Estate Divi- Stephanie Loomis-Price erty Synergy Group; Co-Vice-Chair,
sion; Vice-Chair, Signifcant Current Winstead PC Communications.
Probate and Trust Legislation; Editor, Houston, Texas
Keeping Current, Probate & Prop- Nominated for third term as Finance Jessica A. Uzcategui
erty; Chair, Committee on Long Term and Corporate Sponsorship Offcer, Sacks Glazier Franklin & Lodise LLP
Health Care; Chair, Limited Liabil- term ending August 2017. Positions Los Angeles, California
ity Companies; Chair, Healthcare held in Section: Finance and Cor- Nominated for second term as Assis-
Decisions; Chair, Organ and Tis- porate Sponsorship Offcer; Chair tant Secretary, Trust and Estate
sue Donation Committee; Member, and Vice-Chair, Tax Litigation and Division, term ending August 2017.
de h s i l b u P n i e t a b o r P & , y t r e ep m o u r l P o V , 0 3 o N 3 © 6 1 0 2 y b e h t n a c i r e m A ra B . n o i t ad ie c c o u s d s o A r p e R h t i w . n o i s s i m r e p
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Positions held in Section: Assistant Task Force; Council, Real Property Beth Wood
Secretary, Trust and Estate Divi- Division. Moore & Van Allen
sion; Vice-Chair, Probate & Fiduciary Charlotte, North Carolina
Litigation; Member, Corporate James Geoffrey Durham Nominated for frst term on Coun-
Sponsorship; Co-Chair, Ethics and University of Dayton School of Law cil, Trust and Estate Division, term
Malpractice; Member, Diversity. Dayton, Ohio ending August 2019. Positions held
Nominated for second term on in Section: Co-Chair and Mem-
Sterling Scott Willis Council, Real Property Division, ber, CLE; Vice-Chair, Emotional and
Fishman Haygood, L.L.P. term ending August 2019. Positions Psychological Issues in Estate Plan-
New Orleans, Louisiana held in Section: Standing Committee ning; Ex-Offcio, Council; Member,
Nominated for frst term as Assistant on Ethics and Professionalism Liai- Planning.
Secretary, Real Property Division, sons to ABA Entities; Chair, Ethics
term ending August 2017. Posi- and Professionalism; Group Chair Robert D. Steele
tions held in Section: Chair, I-7 Legal and Vice-Chair, Practice Manage- Schwartz Sladkus Reich Greenberg
Opinions in Real Estate Transac- ment Group; Member, Membership; Atlas LLP
tions; Vice-Chair and Member, CLE; Member, CLE; Member, Task Force New York, New York
Vice-Chair, eCLE; Member, Planning on Real Property Law School Cur- Nominated for frst term on Coun-
Committee. ricula; Liaison, Standing Committee cil, Trust and Estate Division, term
on Ethics & Professional Responsi- ending August 2019. Positions held
James D. Spratt bility; Group Chair, Legal Education in Section: Vice-Chair, K-2 Technol-
Bowden Spratt Law Firm PC and Uniform Laws Group; Assis- ogy in the Practice; Managing Editor,
Atlanta, Georgia tant Secretary, Council; Council, Real E-State; Chair, Public Web Site and
Nominated for second term on Property Division. E-State; Chair, Vice-Chair, Co-Vice-
Council, Trust and Estate Division, Chair, and Member, Publications;
term ending August 2019. Posi- Candace M. Cunningham Editor and Articles Editor for TE,
tions held in Section: Vice-Chair and Robinson & Cole LLP RPTE eReport; Ex-Offcio, Council;
Co-Chair, C-2 Estate Planning and Hartford, Connecticut Co-Chair and Co-Vice-Chair, Emo-
Administration for Business Own- Nominated for second term on tional and Psychological Issues in
ers, Farmers, and Ranchers; Chair, Council, Real Property Division, Estate Planning; Vice-Chair, Alterna-
Business Investment Entities, Part- term ending August 2019. Posi- tive Dispute Resolution.
nerships, LLCS and Corporations; tions held in Section: Books Editor,
Member, Property Preservation Task Real Property; Member, Mem- Nelse T. Miller
Force; Group Chair and Vice-Chair, bership; Managing Editor, Real Lorber Greenfeld & Polito LLP
Business Planning Group; Liaison to Property; Member, Publications; Edi- Poway, California
Section of Business Law/LLC Model tor, Media/Book Products; Member, Nominated for frst term on Council,
Prototype Project; Member, Mem- Planning; Ex-offcio, Council; Mem- Real Property Division, term end-
bership; Member, Communications; ber, Corporate Sponsorship; Council, ing August 2019. Positions held in
Member, Group and Substantive Real Property Division. Section: Vice-Chair and Chair, Bro-
Committees; Assistant Secretary kers and Brokerage; Vice-Chair, Real
TE, Offcers; Assistant Secretary TE, Henry Talavera Property Litigation and Alterna-
Council; Council, Trust and Estate Polsinelli tive Dispute Resolution; Vice-Chair,
Division. Dallas, Texas Design and Construction; Group
Nominated for frst term on Coun- Vice-Chair and Chair, Commercial
Kellye Curtis Clarke cil, Trust and Estate Division, term Real Estate Transactions; Member,
Keegan DeVol & Clarke PLC ending August 2019. Positions held Diversity; Member, Co-Vice-Chair,
Alexandria, Virginia in Section: Co-Vice-Chair, Welfare and Co-Chair, Communications;
Nominated for second term on Beneft Plans; Vice-Chair, Plan Trans- Member, Planning; Assistant Secre-
Council, Real Property Division, actions and Terminations; Group tary, Real Property Division. n
term ending August 2019. Positions Chair and Vice-Chair, Employee
held in Section: Member, Fellows; Beneft Plans and Other Compensa-
Vice-Chair, Single Family Residential; tion Arrangements Group; Liaison, See our web site at
Member, Membership; Chair, Single ABA Joint Committee on Employee
www.abanet.org/rpte
Family Residential; Co-Vice-Chair Benefts; Liaison, Hispanic National
and Member, Diversity; Group Chair Bar Association; Liaison, RPTE for more Section
and Vice-Chair, Residential, Multi- CLE Representative on ABA Joint
information and
Family and Special Use Group; Committee on Employee Benefts;
Member, Nominations; Mem- Member, Membership; Co-Chair, IRA practice resources.
ber, RP Government Submissions Accounts & Plan Distribution.
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6 n May/June 2016 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 iw thout the epx ress rw itten consent of the American Bar Association.
Young Lawyers network
client Development Tips for Young Lawyers
By W. Peter Connick Jr.
Is it just me or do you also feel like are building a reputation in your a potential client that might affect his
you missed the class in law school in feld, but unfortunately this alone or her business. Doing this reminds
which billing, navigating the offce is unlikely to generate new clients. the client that you are aware of the
water cooler, and client development Thus, it is important to look to the client’s particular business needs, and
were taught? These examples rep- relationships you have already estab- maintaining communication with
resent just a few of the many things lished with friends and family. Those a potential client is very important
young lawyers realize they learned who already know and trust you per- to developing a long-term relation-
little or nothing about during their sonally will most likely trust you ship. How you achieve this comes
time in law school. I thought that professionally, despite your lack of down to the specifc aspects of your
after working hard in law school, my experience. relationship with the client, your
education was essentially over—time I am not suggesting you should own personality, and how you feel
to get out and practice. As I am sure harass your friends and loved ones to most comfortable building that
most naïve associates realize when generate business, because this will relationship.
starting their new jobs, there is a lot likely backfre and strain your per-
to learn about the practical applica- sonal relationships. Be patient. Talk to Use Your Resources
tion of a law degree. your friends and family about what Lack of experience is the biggest
Client development, or “build- you do and the areas in which you hurdle for young lawyers trying to
ing a book,” is one of the more practice, and you may be surprised build a client portfolio. How can you
diffcult, but necessary, challenges at how much you have in common expect someone to trust you with
young lawyers face in the beginning professionally in addition to your his business affairs when you can-
stages of their careers. Young law- personal connection. not promise him that you can handle
yers may ask themselves questions each and every legal dilemma that
when beginning to think about client Get Involved may arise in the course of a legal rep-
development. “Where do I search for Getting involved with professional resentation? The fact of the matter
clients?” “How do I market myself and social organizations will allow is you don’t have to. Most if not all
to potential clients?” “How will I get you to help others and form relation- young lawyers have bosses and men-
a potential client to trust me with ships with colleagues and potential tors who were once young lawyers
my lack of experience?” Here are a clients. For example, offering your themselves. They understand that
few tips that may provide answers to time, legal education, and experience although you are a capable young
these questions. to a local charity will not only help lawyer, you may not be able to han-
those in need but also allow you to dle every legal need your client may
Start from the Beginning practice your law degree and show have. Do not be afraid to tell the cli-
The best way to meet potential cli- others your capabilities as an attorney. ent that although you do not have
ents is through the relationships you Being an active member of a profes- the answer, other lawyers you work
cherish and have built throughout sional organization relative to your with do and are willing to help. Ulti-
your life. A young attorney, with lit- feld of practice will allow you to mately, the client will respect your
tle experience, often lacks a résumé learn from more experienced lawyers candor and you will garner invalu-
of deals and projects that displays and to form strong working rela- able knowledge from working closely
his or her capabilities to potential cli- tionships with colleagues that may with your mentors.
ents. At this stage in your career you eventually lead to referral business. It is important to remember that as
young lawyers practice their profes-
Stay in Touch sion, they are learning how to apply
For more information on the RpTe YLn, When you form a relationship with their legal education to the practical
please contact: Wogan Bernard, Chair, a potential client, stay in touch. This aspects of being an attorney. I hope
Chaffe McCall, L.L.P., New Orleans, can be achieved through a dinner, these tips will be helpful in tackling
Louisiana,
Uniform Laws Update provides statutes vary greatly from state to
information on uniform and model state, with signifcant differences in
state laws in development as they application and procedural require-
apply to property, trust, and estate ments. The ULC drafted the UTDA to
matters. The editors of Probate & facilitate uniformity among the states.
Property welcome information and This is especially important for trusts
suggestions from readers. that have connections with multiple
states where the applicable law is not
Uniform Trust Decanting Act clear.
This past July, the Uniform Law Com- The act includes standard provi-
mission (ULC) approved the Uniform sions typically found in the existing
Trust Decanting Act (UTDA), which statutes, as well as a few innovative
proposes comprehensive legisla- provisions. Existing decanting stat-
tion dealing with the exercise of a utes allow a trustee who has broad
trustee’s discretionary power in the discretion to make distributions of
increasingly popular action known principal for the beneft of one or
as “decanting.” Generally, decant- more benefciaries to make those dis-
ing refers to a trustee’s power to tributions into a second trust. When
Uniform make distributions of trust property the fduciary has broad discretion,
in further trust, subject to the terms few restrictions limit the exercise of
Laws and conditions of a new governing the decanting power. Some of these
instrument. Less commonly, decant- statutes also allow a trustee with lim-
ing can refer to a trustee’s power ited discretion to decant, although the
Update to modify a trust instrument. In all application and restrictions on the
cases, decanting is a fexible tool in power vary widely state to state.
the modern practitioner’s toolbox to The UTDA permits decanting
optimize existing trusts for ongoing when the trustee’s discretion is lim-
administration. ited by an ascertainable standard, but
Decanting has become a widely only for administrative purposes; the
used technique because of its poten- interests of the benefciaries in the
tial benefts. One such beneft is the frst and second trusts are required to
ability to modernize trust provi- be substantially similar. These restric-
sions by, for example, incorporating tions are relaxed for distributions to
directed trust provisions, allowing a special-needs trust for a benefciary
for a protector or designated repre- who becomes disabled. The act also
sentative, and updating provisions specifcally addresses decanting of
for investments and trustee suc- pet trusts.
cession. In addition, decanting can For trusts that contain charitable
preserve certain tax benefts and cred- interests, the UTDA is more restric-
itor protections afforded by trusts tive. The decanting power does not
that might otherwise terminate ear- apply to wholly charitable trusts. For
lier than necessitated by applicable all other trusts with “determinable
law. Decanting also can change the charitable interests” (as defned in the
governing law or situs of a trust or act), the state’s attorney general must
consolidate trusts for a common class be notifed before a decanting, and
of benefciaries. a decanting cannot change the gov-
Perhaps the most attractive fea- erning law of such a trust without
ture of decanting is that it does not court approval if the attorney general
Uniform Laws Update editor: Benjamin require court approval, which can be objects. Further, determinable charita-
Orzeske, Chief Counsel, Uniform Law a time-consuming and costly process; ble interests cannot be diminished in
Commission, 111 N. Wabash Avenue, nor does it require the consent of the the second trust, and decanting can-
Suite 1010, Chicago, IL 60602. For more grantor or benefciaries, which may not be used to change an identifed
information about uniform acts, visit carry with it certain risks, including charity or stated charitable purpose.
the Uniform Law Commission’s web site negative gift, estate, and genera- These provisions are intended to pro-
at www.uniformlaws.org. guest editor: tion-skipping transfer (GST) tax tect the settlor’s charitable intent
Marissa Dungey, Withers Bergman LLP, 660 consequences. without unduly limiting the ability to
Steamboat Road, Greenwich, CT 06830, Currently 23 states have some decant.