Purpose Trusts As A Planning Tool For The 21st Century, Thomas E. Simmons, Brad Myers
Sep 2019
Purpose Trusts As A Planning Tool For The 21st Century, Thomas E. Simmons, Brad Myers
Thomas E. Simmons
No abstract provided.
Unwinding Irrevocable Trusts, Thomas E. Simmons
Jun 2019
Unwinding Irrevocable Trusts, Thomas E. Simmons
Thomas E. Simmons
No abstract provided.
Conflict-Of-Interest-Infected Virtual Representatives And A Cure, Thomas E. Simmons
Dec 2018
Conflict-Of-Interest-Infected Virtual Representatives And A Cure, Thomas E. Simmons
Thomas E. Simmons
The general rule that a person cannot be bound by an agreement or a decree unless she received notice encounters practical difficulties where a person is missing, incompetent, a minor, unascertained, or even unborn. In many trust proceedings, all beneficiaries are necessary parties. But short of appointing a guardian ad litem to represent persons who are difficult to notice, uncertainty and inefficiencies would be encountered were it not for the doctrines of representation and virtual representation. Under these common law doctrines persons -- even if not yet in existence -- can be held to be parties to a proceeding "virtually …
Dispensing (With) Electronic Wills, Thomas E. Simmons
Dec 2017
Dispensing (With) Electronic Wills, Thomas E. Simmons
Thomas E. Simmons
No abstract provided.
A Will For Willa Cather, Thomas E. Simmons
Dec 2017
A Will For Willa Cather, Thomas E. Simmons
Thomas E. Simmons
Artists hold their creative works dear. Whether paintings, poems, or songs, their human creators treat them with special care and often desire that same care be exercised after death. Some may wish to ban the use of a song in a television commercial. Others may wish to stop their novel from being turned into an animated Disney movie. But directing particular uses of property from the grave can be met with several objections and legal impediments. The objections sound in alarmist responses to “dead hand control.” The impediments include the Rule Against Perpetuities, uncertainty, capriciousness, and the repugnancy of restraints …
Income Tax Concerns With Purpose Trusts, Thomas E. Simmons
Dec 2017
Income Tax Concerns With Purpose Trusts, Thomas E. Simmons
Thomas E. Simmons
No abstract provided.
Introducing Virtual Representation, Thomas E. Simmons
Oct 2017
Introducing Virtual Representation, Thomas E. Simmons
Thomas E. Simmons
The general rule that a person cannot be bound by an agreement or decree unless she received notice encounters practical difficulties where a person is missing, incompetent, a minor, unascertained, or even unborn. All beneficiaries are necessary parties in a trust proceeding. But short of appointing a guardian ad litem to represent persons who are difficult to notice, uncertainty and inefficiencies would be encountered were it not for the doctrine of virtual representation. Under the doctrine of virtual representation, persons - even if not yet in existence - can be held to be parties to a proceeding or an agreement …
Leach V. Hyatt: Recasting Indefiniteness, Thomas E. Simmons
Dec 2016
Leach V. Hyatt: Recasting Indefiniteness, Thomas E. Simmons
Thomas E. Simmons
No abstract provided.
Wrongful Death Conflicts For Plaintiffs' Attorneys, Thomas E. Simmons
Dec 2016
Wrongful Death Conflicts For Plaintiffs' Attorneys, Thomas E. Simmons
Thomas E. Simmons
No abstract provided.
A Chinese Inheritance, Thomas E. Simmons
Dec 2016
A Chinese Inheritance, Thomas E. Simmons
Thomas E. Simmons
The cultural values of a society are often discernible in its laws of succession and intestacy. These laws govern the distribution of a decedent's estate when there is no estate plan in place. Intestacy schemes typically reflect basic societal values. Yet, perhaps remarkably, the laws of intestacy bear consistency across various countries, continents, and cultures, rewarding the closest surviving family members. Upon closer examination, unique characteristics also emerge. The most startling characteristic of Chinese inheritance law is its willingness to invoke judicial review of an heir's conduct in settling upon distribution percentages to govern intestacy. American succession law also considers …
Donative Trusts And Equity At Common Law, Thomas E. Simmons
Jun 2016
Donative Trusts And Equity At Common Law, Thomas E. Simmons
Thomas E. Simmons
The historical evolution of express donative trusts in the English Middle Ages down to today both explains and frames the basic elements of a common law trust. Today, trusts in common law countries - and also in many civil law jurisdictions with the exception of China - are utilized in the private donative context to preserve and administer family wealth in ways not otherwise achievable. This paper outlines the basic elements of a common law donative trust from a functional perspective, explaining how trust work as a form of gratuitous transfers and why,
Mapping Chinese Trusts With A Patrimony Compass, Thomas E. Simmons
Jan 2016
Mapping Chinese Trusts With A Patrimony Compass, Thomas E. Simmons
Thomas E. Simmons
Review of: Kai Lyu, Re-Clarifying China's Trust Law: Characteristics and New Conceptual Basis, 36 Loy. L.A. Int'l & Comp. L. Rev. 447 (2015).
Wills Above Ground, Thomas E. Simmons
Dec 2015
Wills Above Ground, Thomas E. Simmons
Thomas E. Simmons
The widespread adoption of electronic court filing systems allow for easier and more efficient views of the rich data of probate proceedings. Wills Law on the Ground by Professor David Horton, published in the UCLA Law Review, highlights both the potential and some of the inherent limitations of empirical research in the law of wills. Wills law has been the battleground of formalists and functionalists over the last half century, with both sides bearing the banner of testator intent, but neither backing up their proposals or counterproposals with much hard data about which better achieves their common aim. Professor Horton …
The Wrongheadedness Of The Poms Pooled Trust Rules And An Unfortunate But Recently Noted Chinese Parallel, Thomas E. Simmons
Dec 2015
The Wrongheadedness Of The Poms Pooled Trust Rules And An Unfortunate But Recently Noted Chinese Parallel, Thomas E. Simmons
Thomas E. Simmons
Supplemental needs trusts of the pooled trust variety have offered important dignity-enhancing protections for individuals with disabilities for several decades. A pooled trust, properly structured according to Congressional requirements, allows the wealth of an individual with disabilities to be overseen by an independent third party trustee, supplementing without displacing means-tested government programs like Medicaid and Supplemental Security Income. Beginning in 2012, the Social Security Administration imposed new burdensome requirements on pooled trusts through its informal POMS manual. Those new requirements have intentionally or unintentionally eliminated as a practical matter the availability of pooled trusts in many states. This unfortunate result …
Testamentary Incapacity, Undue Influence, And Insane Delusions, Thomas E. Simmons
Dec 2014
Testamentary Incapacity, Undue Influence, And Insane Delusions, Thomas E. Simmons
Thomas E. Simmons
Testamentary incapacity, undue influence, and insane delusions are recurring doctrines in the context of an impaired, weakened, or confused individual leaving a will, the validity of which comes under question. In the case of In re Estate of Berg the South Dakota Supreme Court, in 2010, held that an individual possessed testamentary capacity even where he suffered a static lifelong delusion about the identity of his father and was unable to articulate an accurate estimate of his net worth. This article uses Berg as a means of framing the requirements of a valid Last Will and Testament along with the …
Grantor Trusts: The Who, The What, The Where, The Wherefore, And The Wherewithal, Thomas E. Simmons
Dec 2012
Grantor Trusts: The Who, The What, The Where, The Wherefore, And The Wherewithal, Thomas E. Simmons
Thomas E. Simmons
In a “grantor trust,” the grantor is treated as the owner for income tax purposes. All income generated by the trust assets of a grantor trust is taxed to the grantor. Essentially, the trust is ignored for income tax purposes. When an individual creates a revocable living trust and funds it with his or her own assets, for example, the trust is a grantor trust for federal income tax purposes until the grantor’s death. These written materials summarize the history of the grantor trust rules, discuss the rules in context, and illustrate the rules in operation with an outline of …
Estate Planning For Individuals With Disabilities, Thomas E. Simmons
Dec 2011
Estate Planning For Individuals With Disabilities, Thomas E. Simmons
Thomas E. Simmons
The basic federal safety net program for elderly, blind and disabled persons is Supplemental Security Income (SSI). The Social Security Administration (SSA) administers the program and eligibility is based upon financial need. The basic eligible criteria are that an individual have less than two thousand dollars ($2,000) in assets, or three thousand dollars ($3,000) for a couple, although certain limited resources are excluded.
There are also income limitations that individuals must satisfy to qualify for SSI.
SSI’s sister in welfare benefits is the Medicaid (Title 19) program. While SSI is entirely a federal program, Medicaid, which shares the same basic …
Integrating Iras With Snts, Thomas E. Simmons
Dec 2009
Integrating Iras With Snts, Thomas E. Simmons
Thomas E. Simmons
What happens when a client's IRA (or qualified retirement plan) names a third party supplemental needs trust (SNT) as a beneficiary? From a tax perspective, the result might not be pretty. The difficulty in integrating an SNT with an IRA lies in the "see through trust" rules which must be observed in order to qualify for beneficial income tax treatment.
Pooled Trusts: An Introduction And Personal History, Thomas E. Simmons
Dec 2009
Pooled Trusts: An Introduction And Personal History, Thomas E. Simmons
Thomas E. Simmons
A "pooled trust" -- or a (d)(4)(c) trust -- is unique in several ways: (a) A pooled trust is not restricted to individuals under age 65 (although this is under challenge in certain states); (b) A pooled trust can be established by the individual himself/herself; and (c) The at-death "payback" requirement to satisfy the Medicaid lien at a beneficiary's death is stated differently than the payback requirement of a (d)(4)(A) (or "payback") trust. Trusts in other states other my own state of South Dakota have been established to qualify for the special pooled trust benefits. In 2003, I personally undertook …
Decanting And Its Alternatives: Remodeling And Revamping Irrevocable Trusts, Tom E. Simmons
Dec 2009
Decanting And Its Alternatives: Remodeling And Revamping Irrevocable Trusts, Tom E. Simmons
Thomas E. Simmons
No abstract provided.
When Gift Planning Goes Awry, Thomas E. Simmons
Feb 2005
When Gift Planning Goes Awry, Thomas E. Simmons
Thomas E. Simmons
Advisors to gift recipients need to be aware of the possibility of gifts with attached transferee liability.
Using Trusts To Settle Lawsuits, Thomas E. Simmons
Dec 2004
Using Trusts To Settle Lawsuits, Thomas E. Simmons
Thomas E. Simmons
Special considerations come into play when a plaintiff poised to recover money is a child or an individual with a disability. In the context of settling a lawsuit or receiving judgment proceeds, cash cannot simply be delivered to such a person because of the plaintiff's legal incapacity. Instead, recovered funds must be delivered to a third party for the plaintiff's benefit. This third party can be a trustee, a custodian, or a conservator.
In most circumstances, the use of a trust offers greater flexibility and better protections of the plaintiff/client's interests. Not uncommonly, however, attorneys select a conservator or simply …
