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Practical Considerations for Attorneys and Trustees: Trust Decanting After Matter of Kroll

Published on: January 31, 2018 | by Elizabeth Candido Petite

The New York “trust decanting statute” (EPTL 10-6.6) was significantly revised in August 2011. Although commentary and analysis of the new statute appeared almost immediately from practitioners, it was not until late 2013 that the judiciary joined the conversation. In Matter of Kroll,¹ the Surrogate’s Court of Nassau County was faced with a challenge to a trustee’s exercise of appointing trust assets from a lifetime trust to a supplemental needs trust (SNT). The decision is noteworthy not only because it is the first to analyze the revised statute, but also because it serves as an important reminder for all trustees and attorneys to draft flexible trust instruments, to stay current with the needs of beneficiaries, and not to delay when changed circumstances necessitate a change to the trust.

A. Statutory Background

In 1992, New York was at the forefront of trust law when it enacted EPTL 10-6.6, which allowed trustees with unlimited discretion over distributions of principal to appoint trust assets to another trust. The statute was essentially unchanged for almost 20 years, during which time it became evident that the statute had limited applicability. The revised statute now permits all trustees, regardless of their scope of authority, to decant, but they must maintain certain provisions of the original trust in the new trust and cannot eliminate or reduce the interests of current beneficiaries.

2017 Tax Cuts and Jobs Act

Published on: January 25, 2018 | by Anne Marie Robbins

President Trump signed the Tax Cuts and Jobs Act (the “Act”) on December 22, 2017. The Act makes significant changes to the Internal Revenue Code, covering a broad range of income, corporate, and estate taxes. Most of the changes to the Code are effective as of January 1, 2018. Because of Senate rules requiring limits on legislation that increases the federal deficit, many provisions of the Act, including the estate, gift, and generation-skipping transfer (GST) tax provisions, will expire after December 31, 2025.

From an estate-planning perspective, some key takeaways are:

The federal estate, gift, and GST taxes have not been eliminated, as some had hoped. Instead, the exemptions have increased making it less likely that such taxes will be imposed on all but the wealthiest individuals. The base federal estate and gift tax exemption has been doubled to $10 million, indexed for inflation, for tax years 2018 through 2025. The effect is that a single person may now transfer, during life or at death, a total of approximately $11.2 million (the inflation-adjusted figure), or $22.4 million for a married couple. The GST tax exemption has also increased to a like amount.

Drafting Divorce Agreements to Address Life Insurance Obligations

Published on: January 23, 2018 | by Nicole A. Kobis

Nicole Kobis recently authored an article for the New Jersey Law Journal in which she provides insight to an often overlooked and extremely important task that needs to be addressed; obtaining and/or maintaining life insurance policies for each divorced spouse along with ensuring documentation is in place to allow each party access to the policies’ pertinent information.

To read the full NJLJ article click here.

Are Unpaid Internships Ready for a Comeback?

Published on: January 15, 2018 | by Kathleen M. Connelly

In NJBIA’s recent article, Kathleen Connelly, a member of Lindabury’s Employment Law practice group, discusses the U.S. Department of Labor’s (DOL) new test to determine if a student intern is an employee, which may make unpaid internships a more viable option for employers.

“By no means is this a green light for employers to avoid their minimum wage and overtime requirements by masking their employees as unpaid interns,” Connelly said. “I think the best way to approach it is for the employer to stand in the shoes of the intern and craft the internship in such a way that it provides real value to the intern that is linked to the intern’s course of study.”

To access the full article click here.

DOL & NLRB Reverse Positions Seen As Anti-Employer

Published on: January 15, 2018 | by Kathleen M. Connelly

The change in administrations has brought a series of reversals of the Obama era’s less than employer-friendly positions by the U. S. Department of Labor (DOL) and the National Labor Relations Board (NLRB or Board). This article highlights some of the favorable recent developments from these agencies that may be a harbinger of better things to come in 2018.

DOL REINSTATES 17 FAVORABLE OPINION LETTERS WITHDRAWN BY THE PRIOR ADMINISTRATION

For many, many years, the DOL issued official written Opinion Letters in direct response to employer questions regarding the interpretation and implementation of federal labor laws. Although they do not create law, Opinion Letters set forth the DOL’s position on how the Fair Labor Standards Act (FLSA) and other laws apply to very specific circumstances presented by employers seeking the DOL’s guidance. Under the FLSA, an employer who relies in good faith upon an Opinion Letter issued by the DOL is shielded from liability for violations of the minimum wage and overtime requirements of the FLSA, so long as the facts pattern surrounding challenged practice is identical to that contained in the relied-upon Opinion Letter.

Portability – Examination of a Predeceased Spouse’s Estate Tax Return

Published on: January 12, 2018 | by Anne Marie Robbins

In a recent case that is a cautionary tale to preparers of federal estate tax returns, the Tax Court held that the IRS was permitted to examine the estate tax return of the first spouse to die in determining the deceased spousal unused exclusion amount (DSUE) available to the estate of the surviving spouse. The result was an increase to the federal estate tax in the estate of the second spouse.

A husband died in 2012 and his estate reported his DSUE on form 706, the federal estate tax return, and elected portability of the DSUE to the surviving spouse. The IRS sent the husband’s estate a federal estate tax closing letter reporting the return was accepted as filed. When the wife died in 2013, her estate claimed the DSUE reported by the husband’s estate. As part of the examination of the wife’s federal estate tax return, the IRS also examined the 706 filed by the husband’s estate. Without determining a deficiency against the husband’s estate, the IRS reduced the amount of the husband’s DSUE by the amount of taxable gifts given by husband during his life. This reduction in the DSUE reduced the total exclusion available in the wife’s estate and resulted in an increase of the estate tax.

Several holdings by the court are noteworthy:

Governor Signs Legislation – Breastfeeding Is Now A Protected Category Under The New Jersey Law Against Discrimination

Published on: January 9, 2018 | by John H. Schmidt, Jr.

Effective Monday, January 8, the New Jersey Law Against Discrimination was amended to include breastfeeding as a protected status. As a result, an employer cannot refuse to hire, cannot discharge, and cannot treat someone adversely with regard to the terms, conditions or privileges of their employment because that employee is breastfeeding and needs workplace accommodations.

Additionally, the new law requires employers to provide reasonable accommodations to an employee who is breast feeding her infant child, including reasonable break time each day and a suitable, private room other than a toilet stall, in close proximity to the employee’s work area in which the employee can express breast milk for the child.

An Uber Nightmare: Lessons from Another Botched Response to a Cyber Attack

Published on: November 27, 2017 | by Eric B. Levine

Over the past several months, our firm’s Cybersecurity and Data Privacy Practice team has had ample opportunity to report on a number of high profile security and data breaches. It appears that trend is going to continue as another massive cyber-breach was just reported. This time, it was Uber that had its network breached, and that breach impacted 57 million users of the ride sharing service, as well as 600,000 Uber drivers. Although paling in comparison to other recent breaches like that of Equifax and Yahoo in terms of the quantity of individuals whose data was stolen, the Uber breach is equally important in developing your own awareness of how to respond to data breaches, Uber provides another example of what not to do when a data breach occurs. Uber’s mistakes are numerous and could have long-lasting consequences. Here are a few of those mistakes, followed with some advice on how to avoid them.

Mistake #1: Uber fails to notify victims of the breach: Uber reported that its network was compromised in late 2016, yet Uber did not alert victims of the breach until November 21, 2017. The scope of the breach is apparently international, with data protection agencies in the United Kingdom, Australia and the Philippines looking into possible violations of their respective countries’ privacy laws. In the United States alone, there are forty-eight different state laws governing security breach notifications, many of which require notice to be provided as soon as possible. Waiting almost a year before providing notice to individuals whose information is unlawfully accessed likely exposes Uber to liability in a multitude of states and countries in which Uber can expect to be, and has already been sued. As of November 23, 2017, at least two class action lawsuits have been filed in California claiming that Uber “failed to implement and maintain a responsible security procedures and practices appropriate to the nature and scope of the information compromised in its data breach”. Attorneys General from Illinois, New York, Connecticut and Massachusetts have been reported as opening investigations and it is a practical certainty that dozens of their colleagues will soon follow their lead.

Mistake #2: Uber fails to notify governmental authorities of the breach: To make matters worse, in addition to not notifying individual victims of the data breach, Uber did not provide timely notice to governmental agencies until recently. In doing, Uber has potentially exposed itself to regulatory penalties, including fines and potential lawsuits, as well as likely having to appear at state and federal level inquiries, either voluntarily or through the use of subpoenas. Unfortunately for Uber, its explanation as to why it failed to notify the proper authorities is going to be aired to the public, likely in real time.

The Important Role Life Insurance Plays In Divorce Settlement Negotiations

Published on: November 22, 2017 | by Nicole A. Kobis

When couples are ending their marriage or relationship there are many financial issues that need to be resolved including the division of property and respective ongoing support obligations. Two different categories of ongoing support one spouse may be responsible for are child support and spousal support, sometimes referred to as alimony. Child support is paid by one spouse to the other for the benefit of the children that they have in common. Alimony is paid for the benefit of the other spouse to account for a disparity of income that may exist between the couple upon their divorce.

Once the amount of each obligation is either agreed upon or ordered, the former spouses can then move forward and create their new personal budgets knowing the amount of support that they will have to pay or the amount of support that they will receive. But, what happens if one of the spouses dies after a divorce? This is where the existence of life insurance policies to secure these obligations becomes particularly important.

Unless agreed upon otherwise, the obligation to pay alimony terminates upon the death of either spouse. However, if a payee spouse has relied upon a certain amount of spousal support being paid to them, the sudden termination of alimony could be a life altering event. If a life insurance policy was in existence for the benefit of the payee spouse, the payout of the policy can help to mitigate the negative financial impact that sudden death can cause.

Homeowners Association Not Bound by Arbitration Provision Contained in Contract Between Buyer and Developer

Published on: November 21, 2017 | by Blake C. Width

The New Jersey Appellate Division’s decision in Greenbriar Oceanaire Community Association, Inc. v. U.S. Home Corporation, issued on November 16, 2017, determined that a Homeowners Association was not required to arbitrate any disputes with a developer, and, when faced with a motion to compel arbitration, was permitted to file an amended complaint separating out those claims that are not subject to the arbitration agreement.

The association involved in the dispute is responsible for the common areas, administration, and management of a 1425-unit residential community in Waretown, New Jersey. The defendant, U.S. Home Corporation d/b/a Lennar Corporation, was the sponsor and developer of the project, who ultimately transferred management to the association. In its June 2015 complaint, which was twice amended, the association, on behalf of itself and its members, being the homeowners bound to arbitration clauses, asserted numerous causes of action, including: design and manufacturing defects that the association claims constituted violations of applicable building codes and warranties, as well as various violations of the Planned Real Estate Development Full Disclosure Act (PREDFDA), and the developer’s breach of its fiduciary duties.

In light of the arbitration agreement contained in the developer’s contracts with the association’s homeowners, the developer moved to compel arbitration. By the time the motion was considered, the parties settled the design and construction claims. As a result, the question for the motion judge was whether the remaining claims, including those arising under the PREDFDA, and the fiduciary duty claims, were asserted on behalf of the homeowners and therefore subject to the homeowners’ promise to arbitrate with the developer, or whether the claims should be viewed as belonging only to the association, which never agreed to arbitrate any disputes with the developer. By way of his oral decision, the motion judge agreed with the developer’s view and entered an order compelling arbitration, and later denied a motion to vacate the order compelling arbitration.