Category Archives: Legislation

March 27, 2017

Proposed Estate Tax Legislation

by Margot S. Edwards

There are several proposals to repeal the estate tax currently percolating in Congress.  None of these proposals appears to have been fully fleshed out, and it is unclear how the differences will be reconciled.  Notably, none of the proposals reflects the Trump campaign position supporting a “mark to market” tax to be imposed at death. Below is a brief summary of the currently proposed legislation, and the key differences between them.

H.R. 451:  Known as the “Permanently Repeal the Estate Tax Act of 2017,” this bill is the shortest.  It states simply that for “decedents dying after December 31, 2016, Chapter 11 of the Internal Revenue Code of 1986 is repealed.”  This operates to repeal the estate tax, but to leave the gift tax and generation-skipping transfer tax in place. Read more >>

February 13, 2017

Trump Foundation Admits to Self-Dealing

by Kelly Dickson Cooper

The rules and regulations surrounding the operation of family foundations contain traps for the unwary and prohibit self-dealing transactions.  We regularly help families navigate the complex rules regarding self-dealing transactions for private foundations.

These self-dealing rules tripped up the Donald J. Trump Foundation, which has admitted that it has engaged in self-dealing.  How do we know?  A private foundation is required to file a Form 990-PF each year and that return requires a foundation to answer questions regarding its activities and transactions.  The following question caused issues for the Trump Foundation: “During the year did the foundation (either directly or indirectly): Transfer any income or assets to a disqualified person (or make any of either available for the benefit or use of a disqualified person)?  By answering “Yes,” the Trump Foundation has admitted that a self-dealing transaction occurred.  The Trump Foundation’s Form 990-PF (and many other foundations’ returns) are available through www.guidestar.com.

December 5, 2016

Will the Estate Tax Really Go Away?

by Carol Warnick

Will the estate tax be eliminated as part of the tax reform promised by the incoming administration?  Unfortunately, my crystal ball is not working well and I don’t have an answer for that question.  I would, however, like to share a bit of the tortured history of the estate and gift tax since the Civil War in the hope that it might give us some perspective when wondering what the future will bring.

A series of Acts between 1862-64 created an inheritance tax which helped finance the war effort.  Rates were between .75% and 5% and there was an exemption of $1,000.  In 1870 the inheritance tax was repealed.  An estate tax was again instituted to fund a war effort in 1916, in response to World War I.  The rates were between 1% and 10% and there was an exemption of $50,000.

Read more >>

August 12, 2016

High Net Worth Taxpayers and their Advisors Should Act Now to Address the Proposed Regulations to Section 2704

by Margot S. Edwards and Anne A. Zeckser

Due to recently proposed regulations to Section 2704 by the U.S. Treasury Department, high net-worth taxpayers and their advisors need to act now to evaluate the best course forward. The proposed regulations threaten to significantly curtail the application of discounts to intra-family transfers of entity interests, which impact key gift and estate tax planning techniques used for high net-worth individuals.  For wealthy families and their advisors, these proposed regulations call to mind the flurry of wealth transfer planning activity that took place in late 2012.  Advisors are anticipating a very busy fourth quarter working with clients to address the impact of the proposed regulations.

Who Should Act Now

In consultation with their advisors, the following taxpayers should look carefully at their assets to determine whether there are any opportunities to shift substantial value out of the taxpayer’s taxable estate before discounts effectively disappear:

  • Taxpayers whose estates are subject to the imposition of estate tax
  • Taxpayers who have historically made annual gifts of discounted business interests to family members or trusts
  • Taxpayers who have been considering establishing a long term trust for family members to hold business interests
  • Taxpayers who have an existing trust in place for family members
  • Taxpayers who have a need for business succession planning

Next Steps – What to Do and When

The proposed regulations could become final and effective as early as late December 2016 (although a later effective date is more likely) and a hearing on these regulations is scheduled for December 1st. As a result, all family business owners and wealthy taxpayers should take this opportunity to meet with their team of advisors to review their wealth transfer plans and, if additional transfers are warranted, initiate that process as soon as possible.

The affected taxpayers should consider gifts or sales of discounted business interests to family members or trusts by the end of this year. However, it is important to note that there will likely be a 3-year-look-back on transfers.  These taxpayers should also consider the transfer of discounted entity interests to a trust in exchange for a note or an annuity interest to preserve future planning opportunities.  While it is unclear whether the IRS will require some sort of consistency of valuation for payment of promissory notes and annuity interests, there is the potential that payments could be made with undiscounted interests later, further enhancing the tax savings. Read more >>

July 5, 2016

Colorado’s New Digital Assets Act

by Morgan Wiener

You may have previously read on this blog about digital assets, the impact they have on the administration of trusts and estates, the need for fiduciaries to access digital assets, and the privacy concerns that come along with such access. In order to address these issues, Colorado has recently enacted the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”). This new act will be effective as of August 10, 2016 and can be found at C.R.S. § 15-1-1501 et seq.

RUFADAA addresses these issues by setting forth the circumstances under which a fiduciary is allowed (or may gain) access to digital assets, while also taking into account the privacy interests of the testator, settlor, protected person, etc. (for ease of reference, I will generally refer to these people as the “Person”). RUFADAA also takes into account the interests of the custodians of the digital assets; a custodian is defined as the person or entity that carries, maintains, processes, receives, or stores a digital asset of a user and includes entities such as banks, Google, Yahoo, and Facebook. RUFADAA places paramount importance on the intent of the Person and limits a fiduciary’s automatic access to the content of the Person’s digital communications absent their consent or a court order.

Read more >>

April 27, 2016

Personal and Family Lending: New Federal and Colorado Regulations

by Desta K. Asfaw

There have been a number of recent changes to the mortgage lending laws.   Under current law in Colorado, certain private loans secured by residential real estate may be subject to compliance with strict licensing and other requirements.   Failure to comply could potentially result in misdemeanor charges and/or fines.

These new obstacles stem from provisions of the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (“SAFE Act”), the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), and the Colorado Mortgage Loan Originator Licensing and Mortgage Company Registration Act (“CMLO Act”).

Read more >>

January 25, 2016

Colorado Supreme Court Upholds the Strict Privity Doctrine for Attorney Malpractice Claims

by Kelly Dickson Cooper

The Colorado Supreme Court upheld the strict privity doctrine for attorney malpractice claims by nonclients and reaffirmed that an attorney’s liability is limited to when the attorney has committed fraud or a malicious or tortious act, including negligent misrepresentation. Baker v. Wood, Ris & Hames, case number 2013SC551 (2016 CO 5).

In Baker, the dissatisfied beneficiaries sued the attorneys for their father and alleged as follows:

  • The attorneys failed to advise their father of the impact of holding property in joint tenancy.
  • The attorneys failed to advise their father that failing to sever those joint tenancies would frustrate his intent to treat his children equally with his stepchildren.
  • The attorneys’ actions allowed the surviving spouse to change their father’s estate plan after his death.
  • The attorneys drafted documents for the surviving spouse that were different from their father’s original plan.
  • The beneficiaries were the intended beneficiaries of the client’s plan, that the attorneys failed to advise the beneficiaries of the relevant facts, and that they had suffered damages as a result.

The beneficiaries asked the Colorado Supreme Court to adopt the “California Test” or the “Florida-Iowa Rule” and set aside the strict privity rule. The Court rejected the adoption of both tests and reaffirmed the strict privity rule. The Court also held that the beneficiaries’ claims would fail under both the California Test and the Florida-Iowa Rule.

The Court put forth the following rationales for upholding the strict privity rule in Colorado:

  • It protects the attorney’s duty of loyalty to the client and allows for effective advocacy for the client.
  • Abandoning strict privity could result in adversarial relationships between an attorney and third parties. This could result in conflicting duties for the attorney.
  • Without strict privity, the attorney could be liable to an unforeseeable and unlimited number of people.
  • Expanding attorney liability to nonclients might deter attorneys from taking on certain legal matters. The Court reasoned that this result could compromise the interests of potential clients by making it more difficult to obtain legal services.
  • Casting aside strict privity would increase the risk of suits by disappointed beneficiaries. Those suits would cast doubt on the testator’s intentions after his or her death when he or she is unavailable to speak.
  • The beneficiaries have other avenues available to them, including reformation of the documents.
  • A personal representative can pursue legitimate claims on behalf of a testator.

The Court held, “We further believe that the strict privity rule strikes the appropriate balance between the important interests of clients, on the one hand, and non-clients claiming to be injured by an attorney’s conduct, on the other.” As a result, the strict privity rule remains intact in Colorado.

October 13, 2015

No Medical Evidence Required for Appointment of a Conservator

by Kelly Dickson Cooper

Imagine that you have just discovered that your father has received several unsolicited emails asking for money and that he has sent almost $500,000 to anonymous offshore bank accounts.  Worried for your father, you decide to seek a conservatorship to protect his assets. 

These are the facts that started the dispute resulting in a recent Colorado Court of Appeals case, In re Neher, 2015 COA 103 (July 30, 2015).

At the hearing, there was no medical evidence presented, but rather, expert testimony from a CPA.  The Court ruled in favor of son and his father appealed.  The father’s primary argument on appeal was that Colorado’s conservatorship statute requires medical evidence before a court can determine whether a conservator is necessary. 

Colorado’s conservatorship statute provides that a petitioner must prove by clear and convincing evidence that the individual is unable to manage his property and business affairs because they cannot effectively receive and evaluate related information.  In addition, a petitioner must prove, by a preponderance of the evidence, that the individual has assets that will be wasted or dissipated unless management is provided and that protection is necessary.

The Court of Appeals denied the father’s appeal and held that medical evidence is not required evidence in a proceeding requesting appointment of a conservator.  The Court of Appeals considered the following in reaching the decision:

-The language of the statute does not expressly require expert testimony like other statutes in Colorado.

-The language of the statute does not require that a petitioner show the causes of the individual’s inability to effectively receive or evaluate information.

-The Court’s interpretation is consistent with other conservatorship statutes.

-To determine legislative intent, the Court compared the Colorado statute to the Uniform Probate Code and specifically identified that the Colorado statute did not contain the language “an impairment” like the Uniform Probate Code.

The Court of Appeals rejected the father’s arguments that the judicial department forms regarding the appointment of a conservator and the termination of a conservatorship contain references to a physician’s letter or professional evaluation.  The Court of Appeals also rejected the father’s out of state case citations as unpersuasive.

Litigation in the area of conservatorships is continuing to grow and this case provides important guidance for the interpretation of the Colorado standard for the appointment of a conservator.

September 1, 2015

The Uniform Trust Code — A Time for Colorado

by Carol Warnick

The Uniform Trust Code (“UTC”) has now been adopted in 31 states.  It is now the law in significantly more states than the Uniform Probate Code.  The UTC is a uniform law drafted by the Uniform Law Commissioners, over a seven-year period.  It is the first comprehensive uniform act dealing with trusts, although several states, notably California, Georgia, Indiana and Texas, all had comprehensive trust statutes at the time.  These statutes, as well as any existing trust statutes in other states, were reviewed by the committee drafting the UTC.  The stated goal of the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) when drafting the model act was to “provide States with precise, comprehensive, and easily accessible guidance on trust law questions.”  The impetus behind the model trust act was the growing use of trusts throughout the country, which coupled with the sparse body of trust law in many states, created significant issues for lawyers and courts trying to deal with trust disputes. 

I practice trust and estate law in three states, Colorado, Utah and Wyoming.  Both Utah and Wyoming have adopted the UTC.  I find that it is so much easier to deal with and solve trust disputes in both Utah and Wyoming because of the provisions of the UTC.  One reason is that the law is set forth much more clearly and gives judges ready authority to back their decisions.  In my experience, bringing a statute to the attention of the court carries more weight than finding a case that is close to “on-point” in the dispute, if finding such a case is even possible.  Because the law is set forth more clearly, everyone going into a dispute knows what the law is.  There is not a significant body of trust common law in any of the states I practice in, therefore the UTC brings significantly more uniformity to the decisions of the variety of judges who have to rule on trust issues. 

In addition, there are innovative portions of the UTC that provide more options to trust beneficiaries and potential litigants when issues arise with respect to a given trust.  One example of such innovation are non-judicial settlement agreements.  The UTC specifically provides that parties may enter into binding non-judicial settlement agreements to resolve issues concerning trusts as long as the agreement doesn’t violate a material purpose of the trust and includes terms and conditions that could be properly approved by a court under the UTC or other applicable law.   Examples of matters that can be approved by a non-judicial settlement agreement would be the interpretation or construction of terms of the trust, approval of a trustee’s report or accounting, direction to the trustee to refrain from performing a particular act or to grant the trustee a necessary or desirable power, resignation and appointment of a trustee and determination of trustee compensation, transferring the trust’s principal place of administration, and the liability of a trustee for an action relating to the trust.  Any interested person can also seek court approval of the agreement, but in my experience working with non-judicial settlement agreements in Utah and Wyoming, no one has felt the need to obtain court approval after the negotiation of such an agreement.   Such flexibility allows the interested persons with regard to a trust (defined as those whose consent would be required to achieve a binding settlement if it were to be approved by the court) to collaborate and work out a variety of issues that would otherwise require the additional time and expense of obtaining court approval for such actions.  I have found this option to be invaluable in working out trust issues for clients, especially when the size of the trust does not justify significant court involvement, and often brings about settlement more readily. 

Much to the chagrin of many estate planners, the UTC was defeated in Colorado over a decade ago but is again being studied by a committee at the Colorado Bar Association.  Each state legislature has the ability to adjust the model act and modify it as seems appropriate to reflect local preferences, so there is hope that the model act can be adjusted in such a way that it can be passed next year.  I want to lend my voice of support to the adoption of the UTC in Colorado as an act that would greatly facilitate the ability to solve trust disputes early, more readily, and with less expense. 

July 21, 2015

Opposition to the Uniform Fiduciary Access to Digital Assets Act

by Morgan Wiener

Despite the final version being passed by the Uniform Law Commission two years ago, the Uniform Fiduciary Access to Digital Assets Act (“UFADAA”) has not yet enjoyed widespread passage by state legislatures.  According to the Uniform Law Commission, to date, UFADAA has only been enacted in one state – Delaware.  An additional 26 states introduced legislation to enact a version of UFADAA during the first half of this year, but none of those measures have been passed.  As tempting as it may be to lay the blame on the sluggish pace of the legislative process, it’s important to note that UFADAA also faces substantive resistance.

Although much of the commentary surrounding UFADAA, both on this blog and in the estate planning community at large, has been positive, industry and consumer groups have both opposed the act on privacy grounds.  For example, letters published by both Yahoo! and a coalition of civil liberties groups have raised concerns that the relatively unfettered access to digital assets allowed by UFADAA goes too far and does not do enough to protect the privacy interests of not only a decedent, but also those who communicated with a decedent during his lifetime.  These letters can be found here and here.  The Internet Coalition, a group that represents the interests of major e-commerce and social media companies, the State Privacy and Security Coalition, Inc., and NetChoice, a group whose goal is to promote e-commerce, have all also opposed UFADAA’s enactment in various states.

NetChoice has gone further than simply opposing UFADAA and has proposed its own alternative to UFADAA – the Privacy Expectation Afterlife and Choices Act (“PEAC”).  Rather than providing automatic access to a decedent’s digital assets, PEAC contemplates that the probate court will grant access only upon making certain findings and contains a number of provisions that appear designed to protect the holders of digital assets.  You can read the full text of PEAC here.

It will be interesting to see whether UFADAA gains more traction during the next legislative session or whether the opposition holds firm.  Watch this space for updates.