No Second Chances for Faulty IRA Trusts

Topics in Legal News 2010/09/06 17:34   Bookmark and Share
Postmortem wealth transfers to IRA beneficiaries continues to present estate planning challenges.  Although perhaps not the final word on the matter, the IRS now prevents postmortem trust reformation designed to allow trustees to treat them as designated beneficiary trusts.  The relevant ruling is PLR 201021038.

The broadness of the limited power of appointment was perhaps the most critical flaw in the subject trust.  It was too broad to be able to determine the correct measuring life.  There were other flaws as well, most notably the trust’s naming of charities as potential beneficiaries.

The tax consequences of this ruling are devastating to any similarly-flawed trust:  Beneficiaries cannot stretch out required withdrawals over the lifespan of the oldest beneficiary but would presumably have to withdraw all money from the plan within just a few years.

Unless a tax court modifies this ruling – and until it does – the bar is very high indeed for those who draft trusts for the purpose of receiving postmortem IRA distributions.  In short, get it right the first time!  I would read and reread
section 401(a)(9) to ensure the trust conforms to the section’s standards precisely.  Going forward, you may also wish to give grantors an opportunity to review the terms of their trusts to ensure they conform with the changing law on this subject.  A brief look every three-to-five years is appropriate, although factors like ill health or legal developments with dramatic impact may warrant more frequent reviews.

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Murder conviction of mom reversed in California

Topics in Legal News 2010/08/03 08:53   Bookmark and Share

An appeals court panel has reversed the murder conviction of a mother accused of driving her teenage son and his friends to a Southern California park where a 13-year-old rival gang member was stabbed to death.

The 2nd District Court of Appeal panel ruled 2-1 on Monday that jurors in the case of 33-year-old Eva Daley were given an "impermissibly ambiguous" jury instruction during the 2008 trial.

Associate Justice Laurie D. Zelon wrote that case records don't show the jury based its verdict on a legally valid theory, so the conviction should be reversed.

Daley had been convicted of second-degree murder for the 2007 death of Jose Cano.

Prosecutors argued that Daley wanted revenge because Cano allegedly stabbed her son six months earlier.

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Judicial Vacancies Slow the Wheels of Justice

Topics in Legal News 2010/07/12 10:06   Bookmark and Share

As the Senate prepares to vote on whether Elena Kagan should fill the vacancy on the U.S. Supreme Court, there remain a substantial number of other vacancies in the nation’s lower federal courts that urgently need filling.

Currently, there are about 100 vacancies in the lower federal courts. The American Bar Association says the lack of judges is affecting the efficiency and fairness of the justice system.

ABA President Carolyn B. Lamm said, “Our courts are already terribly strained at the federal level because of the caseload and the workload, and when you’re a hundred justices down…that’s a big gap.  We have speedy trial rules that require them to put criminal cases first.  As a result, all of the civil proceedings are put off and there is a real gap in terms of a significant delay as a result of the vacancies. It is edging toward a crisis not to have a full bench.”

Even if all the vacancies were filled, said Lamm, a significant number of new judgeships would still be necessary to handle caseload growth.  In fact, the Judicial Conference of the United States is recommending 67 new permanent and temporary judgeships. 

Beyond the existing 100 vacancies, more than 20 additional judges have announced that they will retire in the next several months. Since the start of the 111th Congress, President Obama has made 78 nominations to fill the empty seats, and the Senate has confirmed 36 of the nominees.  

Lamm noted that most nominees have moved through the Senate with little dissent and little delay.

When they finally are scheduled for a vote by the Senate, Lamm commented, “None of them have in fact engendered huge debate on the floor of the Senate….  No one has seen a pattern of inappropriate people being nominated; it is simply very slow and it really needs a full bipartisan effort to move these nominations. And quite frankly, it is becoming urgent,” said Lamm.

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Law firm probes Skipton ceiling contract clause

Topics in Legal News 2010/02/25 03:12   Bookmark and Share

Law firm Leon Kaye has launched an investigation into the legal implications of Skipton Building Society’s decision to scrap the ceiling on its standard variable rate.

Money Marketing first revealed last month Skipton’s move to scrap the ceiling rate on its SVR, which had meant borrowers would not pay more than 3 per cent above the base rate.

The society blamed “exceptional circumstances” for removing the ceiling.

Leon Kaye Solicitors says such clauses are normally built in to contracts to ensure the lender has some control but it is investigating whether Skipton could be in breach of the Unfair Contract Terms Act 1977.

Leon Kaye Solicitors’ statement says: “Those borrowers who cannot switch mortgages will be exposed to significant increases in their interest payments despite taking out an SVR for added protection against such rises in the interest rate.

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Montgomery law firm files suit against Toyota

Topics in Legal News 2010/02/16 09:10   Bookmark and Share

Montgomery law firm Beasley Allen Crow Methvin Portis & Miles PC recently filed a lawsuit against Toyota Motor Corp. and Toyota Motor Sales USA on behalf of more than 500,000 Toyota Prius and Lexus Hybrid owners.

The firm, which filed the case in the U.S. District Court Middle District of Alabama, alleges that Toyota concealed facts relating to the defects in the accelerator braking system. Beasley also filed complaints of breach of implied warranty of merchantability, fraudulent concealment, unjust enrichment and breach of the covenant of good faith and fair dealing, according to a written statement.

“Toyota knew about these defects long before they issued a recall, yet they continued to market the vehicles as safe and reliable,” said Dee Miles, head of Beasley Allen’s consumer fraud and class action department.

Toyota Motor Corp. (NYSE:TM) has been under scrutiny recently after initiating several recalls on millions of vehicles. One of the most recent recalls included fixing accelerator pedals that began to stick over time, preventing drivers from stopping with their brakes, according to news reports.

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The money question: At many law firms, these prices are in-SANE!

Topics in Legal News 2010/02/12 09:12   Bookmark and Share

The way some people tell it, law firms have begun to sound more like used-car companies, offering up deep discounts or alternative-fee arrangements.

Alternative fees, discounted billing rates and fixed-fees are becoming more and more rampant in the legal world, although it remains to be seen just how cost-effective those discounts are.

“It’s incredibly easy to get discounts,” said Jay Shepherd, founder of Boston-based Shepherd Law Group. Shepherd has famously shunned the billable-hour model, in favor of fixed-fee arrangements. “I’ve talked to many in-house counsels who say, ‘I just make a phone call, and I get a discount.’ Law firms are doing something that car companies did about a year ago, with the employee discount pricing. It becomes a frenzy of discounting.”

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