In this presentation, Sandra Glazier will address the potential impact that a beneficial interest in an irrevocable trust may have with regard to the division of marital assets or invasion of trust assets in the event of divorce; drafting considerations that might impact the treatment of a beneficiary’s interest; the potential implications of grantor trust status in the event of divorce; and other drafting, decanting, and jurisdictional considerations that may impact the right of the court to compel invasion.
 

James M. Kane has written frequently over the years about one of his favorite estate planning, tax, and asset-protection trusts: the intervivos qualified terminable interest property (QTIP) marital trust. In this presentation, James will discuss details about a wide range of drafting and design options. He will cover how the intervivos QTIP in many state jurisdictions allows the settlor spouse to retain, reducing section 2036 exposure, a secondary QTIP interest in the event the settlor survives the death of the beneficiary spouse, and how, as a result of favorable state statutes, the QTIP trust is potentially much stronger and more effective for asset protection purposes than, for example, a spousal lifetime access trust. The availability of using a full, partial, or no QTIP election upon creation of the QTIP trust, as well an election under certain circumstances at each spouse’s later death, help to provide virtually unbounded planning options. The design of a QTIP trust can also be well-grounded with the available, favorable QTIP case law and statutes (including QTIP regulations)—but as with most planning, requires careful and precise conformity with these laws. Otherwise, any planning, including a QTIP, can be disastrous.
 

The Corporate Transparency Act (CTA) went into effect January 1, 2024. Under the CTA, tens of millions of entities must file an initial report with FinCEN before the end of 2024, and millions of updated reports will need to be filed every year going forward. While FinCEN has provided guidance that helps define reporting company, beneficial owner, and company applicant, important issues remain unresolved. This presentation will focus on areas of the law where there is not enough guidance and where reasonable people disagree. It will also provide insight into some of the less commonly discussed areas of the CTA. Topics will include identifying beneficial owners where a trust owns a reporting company, who is considered a company applicant, and how to calculate the 30-day window to update a previously submitted Beneficial Ownership Information (BOI) report. We will also explore how to report when an exempt entity owns some or all of a reporting company.  Finally, this presentation will include a discussion of how to advise clients while the constitutionality of the CTA is being challenged.

This session will explore the act of decanting from the perspective of the trustee. Given that the trustee is the fiduciary who undertakes the decanting action, understanding not only the important steps that fiduciaries should consider before agreeing to decant but also the actions necessary to complete the decanting can be crucial to a successful decanting. In addition, this session will focus on risk management techniques that trustees can utilize to minimize the risk of an unsuccessful decanting or fiduciary liability associated with decanting.