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By Fred Franke, Franke, Sessions & Beckett LLC The Court of Appeals decided a child custody case arising out of a divorce action that will have reverberations in the law of estates and trusts. In Conover v. Conover, 2016 W.L. 3633062 (July 7, 2016), the Court of Appeals held that Maryland recognizes de facto parenthood. […]

A core element of Maryland asset protection planning for married couples is holding the property as tenants by the entirety. A judgment against either the husband or the wife does not attach to the judgment debtor’s interest in entirety property. Hertz v. Mills, 166 Md. 492 (1934). A principal aspect of tenants by the entirety […]

Once again this year, the General Assembly seeks to enact a bill to permit fiduciaries access to digital assets. The earlier effort was based on the original Uniform Fiduciary Access to Digital Assets Act drafted in July 2014 (“UFADAA”). This initial effort sought to place the fiduciary in the shoes of the accountholder for all […]

Franke, Sessions & Beckett LLC Seldom do criminal cases help us understand the laws governing estates and trusts. Yet Wagner v. State, 445 Md. 404 (12/17/15) is one of those rare cases. In Wagner, a father added his daughter as a “joint owner” of a multi-party account. The daughter also enjoyed a right of survivorship […]

Franke, Sessions & Beckett LLC OPENING THE DOOR TO EVIDENCE The Dead Man’s Statute is a carryover from the ancient prohibition against persons with an interest in a transaction from being witnesses in litigation over that transaction. In the case with the Dead Man’s Statute, one party to the transaction is silenced by death so […]

A recent Maryland tax court case increased a widow’s death taxes by over $400,000 because she relocated from Michigan to Maryland after her husband’s death and was the beneficiary of a QTIP ¹ trust created in Michigan. The facts in Taylor v. Comptroller, 2015 WL 530 5936 (Md. Tax)(9/3/15), are simple: prior to Mr. Taylor’s […]

Estates & Trusts § 1-208(b) provides a rule to determine the paternity of a child born to unmarried parents. The statute declares that the child is the child of the mother but is considered the child of the father if certain circumstances exist. One such circumstance is if the purported father subsequently marries the mother […]

By Fred Franke Franke, Sessions & Beckett LLC Maryland courts and commentators traditionally recommend against joint wills. Shimp v. Shimp, 287 Md. 372 (1980) (Footnote 1: “… (joint wills) are more apt to invite litigation than separate independent reciprocal wills.”) Indeed, the Court of Appeals hoped that its decision, “will discourage the use of such […]

By Fred Franke Franke, Sessions & Beckett LLC Effective October 1, 2015, the Maryland Trust Act provides statutory limitations on the presentation of claims against the decedent’s revocable trust. Current statutory law does not address this issue. Many assumed that the general claims statute of Estates and Trusts §8 – 103 applied. Others believed that […]

A U.S. District Court case is a useful reminder that a personal representative can become personally liable for the decedent’s income tax debt. Although a slam-dunk for the IRS, the case highlights how to preserve funds for the family allowance and/or administrative expenses and, more importantly, how not to become individually liable for the tax […]

This is a “heads-up” to an important development that may impact your practice. Maryland Rule of Professional Conduct 7.4 generally precludes a lawyer from holding himself or herself out as a specialist. [The exception being for patent attorneys.] This rule is undoubtedly unconstitutional. The “granddaddy” of lawyer advertising cases is, of course, Bates v. Arizona, […]

A recent, and controversial, bankruptcy case permitted a creditor to take assets in a trust despite the spendthrift clause. This decision has caused quite a stir in the estate planning/asset protection community. Whether such a reaction is justified depends on how one interprets the decision. In the case, a mother established an inter vivos trust […]