Drafting Agreements for Failure to Fund a Trust or to Intentionally Not Fund a Trust Chapter 15
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Will, and are thus typically unavailable to fund
testamentary bequests unless paid to the executor or the
estate, to the trustee of a revocable trust, or to a
testamentary trustee. For clients that have accumulated
amounts in retirement plans while residing in
community property states, one must be mindful that,
although retirement accounts are non-probate assets as
to the participant or employee, to the extent of the non-
participant spouse's community property interest in
those assets, they are probate assets as to that spouse.
See Allard v. Frech, 754 S.W.2d 111 (Tex. 1988). In
addition, the U.S. Supreme Court has ruled that as to
retirement accounts governed by ERISA, federal law
preempts state community property laws, and the non-
participant spouse has no devisable interest in those
plans. Boggs v. Boggs, 520 U.S. 833, 138 L. Ed. 2d 45
(1997). Since IRAs are not governed by ERISA,
common law principles of ownership, which may
include community property rights of a non-participant
spouse, continue to apply to IRAs and other non-ERISA
retirement assets.
Payment of Debts and Expenses
One of an executor's primary responsibilities
during the administration process is payment of debts
and expenses of the decedent and the estate, including
applicable taxes. In fact, much of local probate law
deals with the procedure for filing claims against estates,
the procedure for executors to evaluate and pay those
claims, identification of assets used to pay claims, and
the order in which the bequests "abate" or are
diminished to the extent that estate assets are used to pay
debts and expenses. See, e.g., T
EX. ESTS. CODE Chpt.
355 ("Presentment and Payment of Claims"); UNIF.
PROB. CODE Art. III, Part 8 ("Creditors' Claims")
(2010). Thus, although executors do not owe a fiduciary
duty to estate creditors, a part of the process in
administering an estate is insuring that debts of the
decedent are paid or provided for to the extent that the
estate has the resources to do so. Obviously, to the
extent that assets are used to pay estate creditors, they
are unavailable to fund testamentary gifts.
Apportionment of Taxes
In those estates in which estate or inheritance taxes
are owed, some assets of the estate will necessarily be
utilized in paying those taxes. In the absence of specific
instructions contained in the Will to the contrary, local
law generally sets forth a specific mechanism to allocate
taxes, interest, and penalties among the various
beneficiaries of the Will. See, e.g, T
EX. ESTS. CODE
Chpt. 124, Subchpt A; UNIF. PROB CODE Art. III, Pt. 9A
("Uniform Estate Tax Apportionment Act") (2010).
Other Changes in Assets During Administration
In addition to the payment of debts, expenses, and
taxes, the assets of the decedent's estate are likely to
undergo a number of other changes during
administration. As a result of these changes, the assets
used to fund bequests are rarely identical to those on
hand at the date of the decedent's death. These changes
can take a variety of forms.
Income Earned During Administration
If the decedent owns income-producing assets, the
executor will earn income during the administration of
the estate. Local law will generally outline how the
income generated by estate assets is to be allocated
among beneficiaries. See T
EX. ESTS. CODE Chpt. 310
("Allocation of Estate Income and Expenses"), which
incorporates by reference in part TEX. PROP. CODE
Chpt. 116 ("Uniform Principal and Income Act").
Sales and Exchanges of Estate Assets
It is not unusual for the executor to dispose of
assets during the administration process. In fact, it is
frequently necessary for an executor to sell one or more
of the assets of the estate in order to acquire sufficient
cash to pay debts and expenses as they come due.
Moreover, the executor may dispose of assets in the
exercise of prudent discretion, to protect and preserve
the value of the estate. For example, an asset that is
declining rapidly in value may be converted into an asset
of more stable value. Although it is unusual for an
executor to actively acquire new assets with cash
(except safe, short-term investment assets), it is not
uncommon for assets in the estate to change form during
administration. Surprisingly, under historical common
law principles, the executor of an estate did not have an
inherent power to continue a decedent's business.
Instead, the executor was normally charged with a duty
to wind up the business. See, e.g., Willis v. Sharp, 113
N.Y. 586, 21 N.E. 705 (1889); In re Wolf's Estate, 87
N.Y.S.2d 327 (Surr. Ct. 1943). The rationale for this
holding is that the continuation of the decedent's
business often prolongs the administration of an estate
and delays the payment of creditors, contrary to public
policy that estates be promptly settled and distributed.
See Davis, Income Tax Consequences (and Fiduciary
Implications) of Trusts and Estates Holding Interests in
Pass-Through Entities, State Bar of Texas 25th A
NN.
ADV. EST. PL. & PROB. COURSE (2001). In the modern
setting, however, executors often act to preserve and
protect estate assets that might include business
interests. Thus, for example, an executor may determine
to incorporate a proprietorship or partnership operated
by the decedent. This incorporation may be undertaken
to minimize liability of the estate to the claims of the
business. As a result of this transaction, the business
assets formerly owned outright by the decedent are
converted into stock in the new enterprise. An executor
may also transfer assets to a partnership or limited
liability company ("LLC") in order to provide a
convenient mechanism to manage assets that might