Presentations

The Presentation was a roundtable discussion of modifying irrevocable trusts using non-judicial settlement agreements. Traditionally, irrevocable trusts would require an equity court order to effectuate a modification of such a trust. Both the Uniform Trust Code (UTC) and the Maryland Trust Act (MTA) permit certain modifications of irrevocable trusts based on the agreement of beneficiaries. Both the UTC and the MTA (which largely mirrors the UTC) provides that the agreement is valid only to the extent it does not violate a material purpose of the trust and only to the extent its terms could be properly approved by the equity court. The materials discuss the nature and risks inherent in these requirements.

This Presentation was for the Orphans’ Court Judges as part of the Judicial College addressing the various rules of construction to be applied when interpreting Wills. The starting point is the “plain meaning” rule which purports to restrict understanding a decedent’s Will to the “four corners” of the Will. The plain meaning rule, however, never literally prohibited recourse to extrinsic evidence. Perhaps the most expansive exception to the rule is the surrounding circumstances exception. This exception permits the Court to consider extrinsic evidence of the circumstances surrounding the testator which, in its nature and effect, simply explains what the testator has written. This Presentation describes how Wills are to be interpreted by Maryland courts.

The Judicial College is the educational arm of the Maryland Judiciary that conducts legal education and professional development for the judges of the various courts of Maryland. This course was designed to orient new Maryland Orphans’ Court Judges whether just elected or sitting only for few years. In practice, however, new Judges and seasoned Judges tend to attend which produces a rich learning opportunity. This Presentation covers the history of the Orphans Court, the scope of its jurisdiction, the mechanics of personal representative appointment, the scope of the personal representative’s duties and powers, the difference between Administrative and judicial probate, and other foundational legal principles important to the Court.

Prompted by Executive Orders issued by the Maryland Governor during the Covid pandemic, Maryland statute was modified, effective 2021 and 2022, to permit remote execution of various estate planning documents. This legislation attempted to strike a balance between accommodating the convenience of remote transactions and preserving the integrity of these documents

This was a half-day program by the Judicial College of Maryland for sitting Orphans’ Court Judges covering a wide array of evidentiary rules that routinely arise in Orphans’ Court proceedings. The topics included the operation and evidentiary effect of Will attestation clauses, the admissibility of surrounding circumstances evidence to assist in Will interpretation, the boundaries of the attorney-client privilege in Will contests, the application of the hearsay rule and the dead man’s statute in Orphans’ Court proceedings.

This was part of a six-hour program by the Maryland State Bar Association as part of its continuing series of courses for practicing lawyers. The course covered a range of fiduciary litigation topics, including Will caveats, will/trust construction and modification, beneficiary enforcement actions against trustees, and lawsuits to recover funds due to elder financial abuse. The evidentiary rules form an integral part of all such litigation.

This was part of a day-long program by the Maryland State Bar Association on topics important to Maryland estate planning lawyers. These materials explore the intersection of estate planning and estate litigation. It focuses on the role of the planning lawyer as a witness in subsequent litigation concerning the documents prepared by the lawyer. This is a PowerPoint presentation summarizing, and expanding on, the primary course material below.

This was part of a day-long program by the Maryland State Bar Association on topics important to Maryland estate planning lawyers. These materials explore the intersection of estate planning and estate litigation. It focuses on the role of the planning lawyer as a witness in subsequent litigation concerning the documents prepared by the lawyer. These are the primary course materials which is a more complete, and more nuanced, presentation of the topic than the PowerPoint linked immediately above.

This was part of a program by the Anne Arundel County Bar Association on the impact of COVID-19 on estate planning. These materials examine some of the planning opportunities available due to the historically low interest rates. Additionally, it covers some methods of locking-in the historically high federal estate/gift tax thresholds that are set to expire in 2026 (and which, in fact, may expire earlier).

These materials present an estate planning overview with an emphasis on the special considerations relevant to federal employees.

This was part of a day-long course presented to an audience of sitting Circuit Court and Orphans Court Judges as part of the ongoing educational programs presented by the Judicial College of Maryland. This course covered contested Wills, testamentary and Inter vivos trusts,  and contested guardianships. These materials describe the leeway courts have in admitting “extrinsic” evidence of the intent of the maker of the document at a trial. Extrinsic evidence is evidence beyond the mere language of the instrument.

How solo practitioners and small firm lawyers need to plan to protect their clients in case of a disability or death.

This was a summary of the 2019 Heckerling Institute and covered the issue of the taxation of trust income that’s pending before the U.S. Supreme Court and also the Maryland Court of Special Appeals case. The Maryland Appellate Court on whether the State of Maryland could include the value of a QTIP trust in the Maryland estate tax where the QTIP trust was formed out of state. It also covered trust construction, modification and reformation issues.

Discussion of Court of Appeals case on Will formalities and a discussion of a Court of Special Appeals case on the use of extrinsic evidence in conjunction with the plain meaning rule. Also discussed the impact of the Maryland Trust Act on planning, litigation, administration and did a survey of common estate and trust litigation topics.

Topics covered: jurisdiction of the Orphans’ Court, appointment of the personal representative, administrative probate vs. judicial probate, duties of a personal representative, scope of duties of the special administrator and other fundamentals.

Discussion of common techniques and essential documents that should be used for estate planning for federal employees.

Topics included a survey of common types of fiduciary litigation including the structural shortcomings of private litigation to expand the elective share in light of the narrow Maryland statute.

Discussion of contested guardianships, actions brought under the Maryland Power of Attorney Act, actions under the Maryland Trust Act and the use of declaratory judgment actions.

Discussed the various approaches taken to mediation in general and specifically how estates and trust mediation varies from the common template.

Discussion of the various special needs trust and when and how they should be employed to protect children with various developmental challenges.

Discussion of the usefulness of the state of mind exception to the hearsay rule and other evidentiary rules particular to estates and trust litigation.

A discussion of the common evidentiary rules appearing in estate litigation that need to be dealt with by the Orphans’ Court judges.

Discussion of how an estate planning lawyer should approach estate planning when there is a high likelihood of litigation over the plan.

A discussion of the private causes of action to curb elder financial abuse.

Basic estate planning course: probate vs. non-probate assets; Maryland death taxes; trust overview; disability planning and health care directives.

The basic premise of Will and trust interpretation is to implement the intent of the decedent. Various evidentiary rules, however, must be navigated in order to let the intent become fully manifest.

The historical origin of the concept of the transmittal of issues and the modern practice regarding same in the Orphans’ Court.

A comprehensive analysis of the Maryland power of attorney statute

This course covers the Will drafting basics for elder law attorneys.

A description of jurisdictional limits on Orphans’ Court power to act; the role of a special administrator and a personal representative and other basic concepts.

Coverage of how special needs trusts are treated under the Maryland Trust Act and how the classic definition of “terms of the trust” interact with trust interpretation under the Act.

A description of the tax and estate planning ramifications of the legality of same sex marriage in Maryland and including it in the interpretation of various Supreme Court cases.

An overview of the intersection between asset protection and estate planning for estates and trusts lawyers in Maryland.

View the whole presentation here.

A review of the codification of the slayer’s rule; review and lapse rule and family settlement agreements.

This includes a beneficiary’s basic rights to know about the trust provisions and to find out information that is necessary to enforce her/his rights as a trust beneficiary.

A basic principle of trust interpretation is that the terms of the trust not only include the written document but also any admissible evidence that reflects the settlor’s intent in preparing a trust. This has great implications both for planning and litigation.

This describes the enforcement rights of a beneficiary to a trust in a trust and also the emerging tort of tortious interference with an expectancy.

This is a comprehensive overview of asset protection aspects to estate planning.

The Schoukroun case reestablished the traditional equity relief to expand the elective share for a spouse beyond simply the probate estate under some circumstances. It also permitted planning in those circumstances where such an expansion of the spousal rights would not be appropriate.

Maryland State Bar Association Section on
Estates & Trusts Law Annual Spring Dinner

This discussion encompasses the 75% basis step up that can be accomplished by using a disclaimer in a decedent’s estate.

This is a description of so-called boilerplate provisions that are often thrown into a Will without serious consideration or discussion with a client. These provisions are important and cannot be just an automatic selection.

Micpel Continuing Legal Education

An analysis of using partial interests in family entities to transfer business interests to younger family members at discounted values for transfer tax purposes.