Quote for the Day

What is decanting and how does it relate to trusts?

The term “decanting” sounds mysterious, but in reality, decanting is simply a form of trust modification initiated by a trustee. The trustee accomplishes the modification by moving assets from one trust to a new trust with different terms. Estate planning attorneys draft trusts designed to last for generations based on assumptions about the beneficiaries that may bear no semblance to reality. Decanting then stems from the desire to make changes to an otherwise irrevocable trust.

Gerry W. Beyer and Melissa J. Willms, “Decanting is not just for sommeliers,” Estate Planning Studies, July 2014

Non-Estate and Non-Business Planning Thought for the Day; In Other Words, Random Thought for the Day

I cribbed this from Tyler Cowen’s blog, Marginal Revolution, who found in this study. To wit:

We identify a number of background characteristics (e.g., undergraduate GPA) as well as screening measures (e.g., applicant performance on a mock teaching lesson) that strongly predict teacher effectiveness. Interestingly, we find that these measures are only weakly, if at all, associated with the likelihood of being hired, suggesting considerable scope for improving teacher quality through the hiring process.

Quote for the Day

 

On becoming a trustee one enters a relationship which is governed by rules and bounded by limits. A trustee who thinks of himself or herself as controlling the relationship is far more likely to encounter serious trouble than a trustee who recognizes that the more practical characterization is that of a faithful partner with the grantor and the beneficiaries, in fulfilling the trust’s objectives.

“What It Means to Be a Trustee: A Guide for Clients,” by the Fiduciary Matters Subcommittee of the ACTEC Practice Committee, 2005

DocuBank: Estate Planning and Health Care Documents at Your Fingertips

I recently became affiliated with DocuBank, a firm that allows my clients and me to store my and my clients to safely and securely store our estate planning documents, including our living wills, health care directives, and HIPAA authorizations. In turn, your and my doctor or the hospital in whose beds we might by lying in can access those records and, we hope, follow our wishes outlined in the relevant documents.

To help make this happen–and fast–DocuBank also provides you and me wallet-sized cards with a summary of our information and phone numbers and the like. It’s pretty nifty. Price well. And, something you should consider using to store your important documents.

Quote for the Day

Regarding one of the drawbacks to joint trusts in a non-community or separate property state:

Loss of Creditor Protection

All of the assets of both spouses may become subject to the claims of creditors of just one spouse. In addition, all of the assets of both spouses may become subject to the environmental liabilities of just one spouse’s separate property. These results can usually be avoided if separate trusts are used.

Louis S. Harrison, “Marriage is Joint; Why Not Your Trusts? When to Use a Joint Trust As a Passthrough Entity in a Separate Property Jurisdiction,” Journal of Passthrough Entities, May-June 2005.

Be Careful Out There

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Here’s a disconcerting claim at Frontline:

A new working paper by professors from the University of Chicago and the University of Minnesota suggests cause for concern. According to the study, 7 percent of advisors have been disciplined for a fraud dispute or some form of misconduct. That can include anything from putting a client in unsuitable investments, to misrepresenting or omitting key facts, “excessive trading,” negligence, or trading on a client’s account without his or her permission. Of the registered advisors who engaged in misconduct at least once, 38 percent are repeat offenders.

And here’s another:

Misconduct is not necessarily a career killer, though. While roughly half of advisors lose their jobs after an offense, 44 percent are back in the industry within a year. That’s especially troubling, as “prior offenders are five times as likely to engage in new misconduct as the average financial advisor,” according to the study.

Seth Turner at Utah’s Deseret News has some suggestions on how to avoid working with an advisor with such tricksters:

  • Know how your advisor makes money. I basically agree with him, though I tend to push back against his subtle anti-commission bias. Yes, you should be clear on what you’re paying and yes, if there’s a less expensive way to achieve the same ends, more power to you. But a lot of very good financial advisors make their living via commission. Don’t write them off simply because that’s how they get paid.
  • Ask for certifications. Again, good advice, but don’t take it too far. The author mentions CFP, ChFC, and CFA as key certifications. Which one of those is not like the others? Don’t know? My point is not to denigrate the CFP and ChFC designations–both valuable credentials–but they are orders of magnitude less difficult to obtain than a CFA. I’m talking the difference between an undergrad and a graduate degree. In any case, don’t just look at the certification on your advisor’s business card, go to the certifying body’s website and check up on your advisor.
  • Ask about fiduciary responsibility. Turner almost offers a good bit of advice on this point: get a “written agreement of fiduciary responsibility.” I say “almost” because I’m not sure what such an agreement looks like. What I recommend is what I am now using with my clients: an engagement agreement, which spells out what I am doing and not doing for my clients, what I will charge them for my services, and when our “engagement” ends.

Turner then asks “What if you find out your advisor has a history of fraud?” He’s a little more forgiving than I would be. “Probably best-off looking for a new financial adviser”? No, you should probably run for the hills. Your finances should not be rehab for fraudsters. Your potential advisor might be a nice guy or gal now, but let them find employ elsewhere, preferably in a a different occupation where they can do good without doing bad to someone’s brokerage account. Remember: “prior offenders are five times as likely to engage in new misconduct as the average financial advisor.” FIVE TIMES.

You have a long road ahead of you. It will be an easier trip if you have the money to reach the end.

Quote for the Day

“Revocable living trusts are useful vehicles for many people. Establishing a trust is certainly an act of love for one’s heirs – the streamlined transfer of assets upon one’s death being the main benefit of a revocable trust.”

Susan Bondy National Financial Expert and Columnist September 23, 2001

Utah HB 251: What a Difference a Day Makes

scales-of-justice-glossy-mdWell, last we talked, Utah House Bill 251 had passed the House of Representatives and had just been assigned to the Senate Business and Labor Committee. It’s purpose was protect employees from overly onerous non-compete agreements. To that end, it allowed such agreements if (1) they protected only “trade secrets,” “proprietary information or processe[s],” or the employer’s “business relations” with customers and employees, and if (2) the agreements were only for a “reasonable time period or scope” or “within a reasonable market.” Courts have already kind of settled on two years as a reasonable time under current law.

The purpose of the proposed law was to allow ex-employees to immediately go out into the workforce and continue plying their trade, so long as they didn’t disclose trade secrets and proprietary information or steal existing clients from their former employers.

But don’t trouble yourself just yet over the wording just stated above. Apparently the Senate Business and Labor Committee has red pens and pencils in its chambers because the language of the bill has changed substantially. First the good news:

  1. “Post-employment restrictive covenants,” that is, non-compete agreements, can’t run longer than one year–so long “reasonable time period”; hello a concrete time limit–and
  2. The employer must provide adequate consideration for the agreement “aside from continued employment.”

I like those provisions, though I’d rather the one year be reduced even further, six months, for example.

Now the not-as-good news:

  1. The bill attempts to allow employers to prevent ex-employees from only directly competing with or working for a direct competitor of the employer. I like the sentiment, and it appears to be a good-faith effort to draw a line in the sand; however, that language and the language of the definition of “direct competitor” still places a lot of power in the hands of the old employer, who probably thinks anything that moves is a direct competitor. As I wrote in my previous post on this subject, the language of this bill and the language in a non-compete agreement means what the employer says it means until a court says otherwise. In other words, the threat of suit is always there, which is one reason I’m not a fan of non-competes.
  2. The bill attempts to define what “proprietary or confidential information” and dismisses employees in “common callings” from the class of employees who might have knowledge of such information. Again, the effort is there, but the language of the bill lets the worried employee down.

I’d have to say that on the whole, I like this bill better than the first, but that I’m still worried about the basic idea of giving essentially a complete stranger power over the life of another complete stranger for one year or two years or a reasonable time period. What do I mean by that? Well, these agreements often come into being at the time a person becomes an employee.  At that moment, the new employee doesn’t know much about the employer–they’re virtual strangers in other words. I find that disturbing.

Quote for the Day

“Income tax returns are the most imaginative fiction being written today.”

Herman Wouk

An Estate Planning Guide for Farmers and Ranchers

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The University of Wyoming Extension office provides some good estate planning advice for farmers and ranchers in its online offering, Passing It On: An Estate Planning Resource Guide for Wyoming’s Farmers and Ranchers. Check it out.

By the way, my use of their logo doesn’t imply their endorsement, nor does it imply my endorsement of what they’ve written. What I’ve read of the guide, I like; however, estate planning is a complex area. It will come as no surprise that I recommend you consult with an attorney who practices in that area.

The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer’s credentials and ability, and not rely upon advertisements or self-proclaimed expertise. This website is an advertisement.