Leimberg Report: NY Updates, Asset Protection Updates & More

The following notable updates were posted on Leimberg for the weeks of March 16-April 5, 2015:

  • Sharon Klein & New York’s Executive Budget for 2015-2016: What Passed, What Didn’t and What’s Next? (Estate Planning Newsletter).New York State has just released its final Executive Budget for 2015-2016, which includes changes to New York’s estate and gift tax laws.
  • Sharon Klein & New York State’s Executive Budget for 2015-2016 – What Lies in Store for New York’s Estate and Gift Taxes? (Estate Planning Newsletter). New York State is on the verge of releasing its final Executive Budget for 2015-2016. Each year after the Governor releases his budget bill, the Senate and Assembly release their so-called one-house budget bills, which are their versions of the Governor’s budget bill.  Negotiations behind closed doors among all parties typically ensue before the release of the final budget, which in the past few years has been enacted on time by April 1.
  • James M. Kane: Income Tax Planning Using the Delaware Tax Trap. (Estate Planning Newsletter).  Focuses on income tax planning using the Delaware Tax Trap, proposing giving a third-party [e.g., grandmother] an alternative Delaware Tax Trap power, other than a general power of appointment, to obtain a stepped-basis for trust assets to the extent of the third-party’s otherwise unused estate and DSUE exemptions.
  • John DeBruyn: The Battle of the States over Access to Digital Assets by Fiduciaries. (Estate Planning Newsletter).  A battle between uniform and tech industry sponsored legislation for fiduciary access and control of electronic information and assets of decedents and incapacitated individuals is being waged in state legislatures around the country.  The advocates of uniform legislation on this subject may be overwhelmed this year by the advocates of alternative legislation sponsored by the tech industry.  So far, the two sides have introduced their legislation in a majority of the state legislatures.  In the next few months, the fate of the uniform legislation in its present form is likely to be decided.
  • Rod Yancy: Sooner (Or Is It Cowboy…It’s Definitely Sooner) Trusts Under Oklahoma Law (Asset Protection Newsletter).  Focuses on changes to the Oklahoma Family Wealth Preservation Trust Act.
  • Alan Gassman & Travis Arango on Trustco Bank v. Mathews: Self-Settled, Spendthrift Trust Debtor Victory Involving Delaware Trusts, Allegations of Impermissible Control & Statute of Limitations Analysis (Asset Protection Newsletter). Provides an analysis of TrustCo Bank v. Mathews, where it was determined that a self-settled spendthrift trust would not be accessible to a creditor who claimed that the grantor maintained “impermissible control” over property transferred to it.
  • Alan Gassman & Travis Arango on Wells Fargo v. Barber: The Barber of Seville Replaces No Time for Sergeants (Asset Protection Newsletter).  In the 2014 Florida’s Fourth District Court of Appeal case of Sargeant v. Al-Saleh, the stock in a foreign corporation could not be reached by the Florida court where the judgment creditor and the debtor were both subject to Florida jurisdiction. The appellate court properly applied conflict of laws analysis and logic to conclude that it would take a court in the jurisdiction where the company and the stock certificate were located to ensure that the right decision was made and not, thereby, prejudice other parties who might have involvement with the company and the stock.  Unlike a physical stock certificate, which is personal property that can be located in and thus subject to the jurisdiction of a foreign court, the federal judge sitting in Orlando (the home of “It’s A Small World After All”), found in Wells Fargo v. Barber that a Nevis LLC interest was “personal property held by the debtor” in Florida, and thus subject to court order and transfer.
  • Chris Riser & Jay Adkisson on Wells Fargo Bank v. Barber: U.S. District Court Allows a Creditor to Obtain a Charging Order and Foreclose Against a Debtor’s Interest in a Nevis LLC (Asset Protection Newsletter).  The U.S. District Court for the Middle District of Florida held that under Florida law a creditor may obtain a Charging Order against a debtor’s interest in a Nevis LLC, and foreclose on that interest, declining to extend the Florida state appellate ruling in Sergeant.

See full Leimberg Reports at Leimberg Information Services.

Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.

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