Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

The Matrimonial StrategistKickerFeaturesSectionsNewsLJN Newsletters

Trust Planning

By Ellen S. Berkowitz
November 29, 2005

Trust planning clearly contemplates the future incapacity and death of the donor. The future incapacity or death of the trustee, however, is not always planned for with equivalent detail and thought. This lack of forethought often results in contests between the remaining competent trustees or between the beneficiaries and the trustees. In the matrimonial context, divorcing spouses should carefully consider who should serve as trustees of trusts established for the benefit of children and/or former spouses. Again, the consequences of what happens when that carefully chosen trustee ceases or fails to serve might not be contemplated. When the beneficiaries and trustees are not friendly, as is often the case in trusts established as part of a divorce agreement, the stakes are even higher. To avoid unnecessary and costly battles, the drafting attorney and the trust's donor should focus on matters, including the definition of incapacity, the procedures involved with declaring a trustee incapacitated, how the trust will be administered once a trustee is declared incapacitated, short term incapacity or unavailability, and the possible tax consequences of a having an incapacitated trustee.

Defining Incapacity

While it seems obvious, well-drafted trust documents should clearly and specifically define the term “incapacitated.” Even if the boiler plate section of your trust document includes such a definition, that definition should be analyzed to ensure that it accomplishes what the donor wants and reviewed periodically to ensure that it is up to date with current developments and trends.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

Legal Possession: What Does It Mean? Image

Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.

The Stranger to the Deed Rule Image

In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.