2019 NAELA Annual Conference
Seminar Reviews

By Eric J. Einhart, Esq.

Trusts Workshop Promotes Community and Education for Record Number of Attendees
The 2019 NAELA Trusts Workshop was a huge success, providing real-life client scenarios that allowed participants to engage first-hand with colleagues and thought-provoking speakers.

The sold-out workshop, which was co-chaired by Joan Lensky Robert, CELA, CAP, and myself, featured six sessions, each focusing on a particular type of trust. The speakers for each session provided attendees with a practical explanation of the trust covered in the session and a fact pattern designed to elicit dialogue among the attendees.

The one-day workshop began with Howard S. Krooks, CELA, CAP, discussing “Revocable Trusts with Pour Over Wills,” and addressing issues such as spousal testamentary trusts and pour back wills. Then Robert A. Mason, CELA, CAP, forged a dialogue with attendees on the topic of “Irrevocable Income Only Trusts,” wherein he addressed invasion of principal, use of income, how to dissolve the trust when necessary, as well as tax issues. Valerie L. Peterson, Esq., completed the morning by presenting on VA Trusts and provided attendees with insight into what the VA requires in a trust and income drafting.

After lunch, Mark D. Munson, CELA, CAP, led an interactive presentation on “Trusts to Hold Retirement Funds, When Beneficiary Is a Minor.” This session addressed accumulation trusts vs. conduit trusts and their effect on government entitlements for minors among other issues related to the topic.

When a weather-related flight cancellation prevented scheduled speaker Brad Frigon, CELA, CAP, from attending the workshop, Vincent J. Russo, CELA, CAP, Fellow, stepped in to speak about “Irrevocable Life Insurance Trusts (ILIT)” on Mr. Frigon’s behalf. Armed with Mr. Frigon’s excellent written materials, Mr. Russo was able to provide the attendees with an understanding of spotting issues with existing ILITs as well as tax consequences of improperly drafted ILIT provisions.

The workshop concluded with an interactive presentation by Mr. Russo and myself on “Supplemental/Special Needs Trusts.” Presenters discussed the differences between first-party and third-party supplemental/special needs trusts, tax issues associated with supplemental/special needs trusts, as well as other issues related to the topic. The speakers and attendees also engaged in a productive exchange of ideas in response to the complex fact pattern.

In addition to the rich exchange of ideas and opinions during the sessions, the attendees had the opportunity to meet other elder law attorneys from around the country and expand their professional network.

If you did not attend this Workshop, the recordings and materials are available for purchase online through the NAELA Store. Go to www.NAELA.org/Store and search for 2019 Trusts Workshop.

Estate Planning Malpractice and Ethics: Cautionary Tales and Practical Implications
The 2019 NAELA Annual Conference concluded with a general session presented by Prof. Gerry W. Beyer (Texas Tech University School of Law where he researches, writes, and teaches in the areas of estate planning, wills, and trusts) on the topic of estate planning malpractice and ethics.

Prof. Beyer, who presented remotely via video conference, took a practical approach to discussing the potential of estate planning malpractice liability and how to avoid it, as well as ethical issues facing estate planning attorneys.

The session started off by looking at the historical need for contract privity in estate planning malpractice that often barred disgruntled beneficiaries from bringing lawsuits against estate planners, and how many state laws (all but about 10, according to Prof. Beyer) have changed to eliminate this requirement.

Attendees also learned about the pitfalls of poor attorney-client interactions, including failure to gather sufficient information from clients, the dangers in believing clients without independent verification, neglecting communications with clients, failure to act in a timely manner, failure to document unusual requests, and failure to recognize will contest omens.

Prof. Beyer also discussed errors made in will drafting and ways to avoid them, such as the importance of proofreading documents, failure to include a provision regarding ademption and lapse, failure to discuss exoneration of fiduciaries, failure to extend survival period, and failure to indicate alternate or successor fiduciaries, among other issues related to will drafting.

Another major topic that served as a lesson to attendees was the need for attorneys to pay attention to improper will execution. Prof. Beyer advised attendees to ensure that the ceremony of the will execution is conducted by a licensed attorney, that no beneficiary of the will should be present at the will execution, and to make sure that the testator signs the correct will in the proper place.

The session also highlighted errors in trust drafting, including the omission of spendthrift provisions, the failure to address principal and income issues, and missing ability to revoke when appropriate.

Prof. Beyer also explained the problems that could arise when representing relatives, both spousal relatives and non-spousal in estate planning, such as conflicts of interest, release of confidentiality and evidentiary privileges, and the proper process of withdrawing from representation of both clients.

The session concluded with a discussion of challenges and pitfalls of drafting attorneys acting as fiduciaries and the fiduciary hiring himself as attorney.