The U.S. and S.C. Constitutions hold the right to jury trial in high esteem, the right is a fundamental one. However, you are not entitled to a jury trial in all cases. The right to trial by jury attaches to actions at law. However, the right to trial by jury does not attach in cases in equity. An action at law is typically a case for money damages. An action for a breach of fiduciary duty is typically an action in equity, however, the court notes that it has been held that an action for breach of fiduciary duty could also be an action at law.

How do you draw the distinction? The Court looks to the remedies requested. In this case, the remedies sought included surcharge, disgorgement, and an accounting. These remedies fall squarely within the equity jurisdiction. Equity jurisdiction does not support a request for a jury trial. Thus, no right to a jury trial for the appellant here.  

My answer was three fold.  First, estate planning allows for the orderly transfer of assets to your heirs after your lifetime. Second, estate planning allows you to protect your heirs from the potentially detrimental effects that an inheritance can have. Thirdly, estate planning can be utilized to protect assets. 

The estate planning task can also vary based on the stage of life you find yourself at. If you are at a younger stage of your life, estate planning can address issues such as guardianship for your children, and management of your childrens’ finances.  If you are at a later stage of life, estate planning can address transmission of retirement assets and protection of assets from medical expenses and, if the estate is large enough, from the estate tax. 

The typical estate plan is made up of several basic documents. They are the Last Will and Testament, the General Durable Power of Attorney for Finances, the Durable Power of Attorney for Health Care, and possibly a testamentary or inter vivos trust.  The documents to be used depend on the individual situation.

I am often asked how much an estate plan costs. My standard reply is that that is a lot like walking into a car dealership and asking the salesperson how much for a car. The answer is it depends on what you need. You can expect a truly barebones simple estate plan to run several hundred dollars, to several thousand dollars for an estate plan utilizing one or more trusts. It can seem like a significant investment, but some attorneys will give you a free consultation to discuss your situation.

One such proposal is to ressurect the estate tax for 2010 at 2009 levels, and to make the federal estate tax exemption portable between spouses. This is an interesting proposal in that theoretically this would eliminate the need for a credit shelter trust to accomplish estate tax planning for a married couple. In a typical planning scenario, the credit shelter trust is funded by assets owned by the first-to-die spouse and is funded up to the exemption amount, and all other assets are placed into a qualified terminable interest property (QTIP) trust for the sole benefit of the surviving spouse. This is done because if all the assets of the first-to-die spouse are transferred to the surviving spouse, the first-to-die spouse’s exemption amount is totally wasted, and a much larger estate tax becomes due at the end of the surviving spouse’s lifetime.     

The portability of the exemption would allow whatever exemption amount that is unused in the first-to-die spouse’s estate to be transferred to the surviving spouse’s estate.  Wouldn’t that be great? The proponents of portability say that this would eliminate the need for the credit shelter trust, thus reducing complexity and the financial burden of estate planning. Good intentions of course, but where again does that road paved with good intentions lead?

Experienced estate planners can instantly recognize the complexities that exemption portability would create.  Number one, what about multiple marriages? (more…)

There is an equitable legal doctrine known as a constructive trust that could come to the parent’s rescue in the above situation. While the McDaniel case did not concern a home transfer for the purpose of estate planning, it involved (more…)

Knowing full well that I am being naive, somehow I hope that this election will bring some bipartisanship back to politics in D.C. The people’s business is important, from the health care reform bill to the inexplicably muddled state of the estate tax, to figuring out how to create an economic environment that gets people back to work. I hope the two parties can begin to work together again on these issues. But then again, I may have to rename this blog the South Carolina Naive Lawyer Blog.

So helpful in fact, that Helpful moved in with mother a few years before mom’s death to take care of her, oh, and she (more…)

Some estate planners are sounding the alarm with regard to estate plans based on credit shelter family trusts and marital deduction trusts.  These trusts are set up in such a way that the credit shelter trust gets funded with assets up to the amount that will not be subject to estate tax due to the previously existing estate tax exemption, while the marital deduction trust gets everything else.  (This set up eliminates all federal estate tax when the first spouse passes away.)

The problem with this set up is that (more…)

Alas, with the laws expected to go into effect in 2010, this will no longer be true.  In 2010, the estate tax is slated to be repealed.  Along with the estate tax, the law allowing for stepped up tax basis upon death is being partially repealed.  In 2009, all estate assets receive a stepped up basis.  However, in 2010 there will be a limited step up in basis only to the extent of $1.3 million in estate assets.  For transfers to spouses, there is an additional $3 million that will receive stepped up basis.  But what does this mean in reality? (more…)