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 […]
Latest Post: “Pouring Over” to a Nonexistent Trust
Digital Assets – What Happens After Death?
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 […]
Important Multi-Party Account Case
Franke 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 in the […]
Developments to the Dead Man’s Statute
Franke 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 (goes the […]
Maryland: The Not-So-Free-State
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 […]
Minor Children and Same-Sex Marriages: A Gap in Existing Maryland Law
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 […]
Tenants By The Entirety Trusts: Joint Tenant Consideratons
By Fred Franke Franke 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 wills.” (“Shimp […]
New Claims Statute for Revocable Trusts
By Fred Franke Franke 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 the general, […]
Tax Man Cometh
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 […]
Lawyer Specialization
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, […]
Castellano Case
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 Maryland Testamentary Exception to the Attorney-Client Privilege
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 […]