Developments to the Dead Man’s Statute

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 […]

The Court of Appeals recently took the “opportunity to more clearly illustrate when and how” the testamentary exception to the attorney-client privilege applies. Zook v. Pesce, 438 Md. 232, 91 A.3d 1114 (05/16/14). In that case, the decedent, Mr. Zook, left his 3 children equal one-third shares of the property in his “living” trust. Two […]

The 2014 General Assembly outdid itself by passing significant estates and trusts legislation. One major enacted change increased the Maryland estate tax threshold.   Although the federal estate tax threshold is $5 million indexed for inflation (currently $5.34 million), the Maryland estate tax threshold has held steady at $1 million for over a decade.   […]

Recently, a state appellate court decided the first reported case in the United States involving the role of a “trust protector.” Many modern trusts provide for a trust protector in addition to a trustee.   The concept originated with offshore asset protection trusts as a hedge against ceding complete control to a foreign trustee.   […]

A new Court of Appeals case illustrates a general maxim: It is not pretty when the world of estates and trusts collides with that of family law. By statute, a divorce voids any will provision benefitting a former spouse “unless otherwise provided for in the will or decree.” Est. & Trusts § 4-105(4).   The […]

We are, hopefully, limping back from the Great Recession.   It is no surprise that fiduciaries (trustees and personal representatives) face difficult challenges in managing assets during the downturn and that those challenges continue. Against this backdrop comes a significant case from the Court of Special Appeals examining the power of the Circuit Court to […]

Ah Fall!   Halloween candy starts to show up, kids go back to school, the leaves start to change and all the stuff the Maryland General Assembly foisted on us becomes law. This year nestled among the usual prosaic fare is a real gem:   a new code section (Est. & Trusts Art. § 14-116, […]

On June 26, 2013, the United States Supreme Court held in U.S. v. Windsor, 570 U.S. _____ (2013) that the surviving spouse of a same-sex couple was eligible to take the marital deduction on the federal estate tax return (I.R.S. Form 706) and that the federal Defense of Marriage Act (“DOMA”) was unconstitutional to the […]

The Slayer’s Rule arose from common law based on the principle that one should not profit from his or her wrongful act. Although fairly straightforward in theory, the operation and effect of the Slayer’s Rule has not been easy to implement. The vast majority of jurisdictions have a statutory Slayer’s Rule. The Restatement (Third) Prop.: […]