When drafting trust documents, it’s important for practitioners to know where the trust is sitused and be familiar with that state’s trust laws. That’s become harder in recent years, as states have revised their trust codes to keep up with “progressive” trends. According to Jay W. Freiberg and Jeremy Bates in their article “Progressive or Regressive?” p. 44, these trends include minimizing trustee accountability and unbundling fiduciary powers and duties so that, for example, administrative duties are handled by a trustee in one state, while investment management obligations are handled by a trustee in a different state. Their article, part of our Estate Litigation Committee Report, goes on to explore what’s driving these changes and how they may affect estate litigation.
Another trend that some states have adopted is offering pre-mortem validation of testators’ estate plans. “Pre-Mortem Will Validation,” p. 54, by Jeremy A. Mellitz, discusses the states that allow this, in one form or another, and the benefits and disadvantages of letting testators to take this step.
The final article in our Committee Report centers around the increasing number of blended families with stepchildren in the United States. In her article, “Litigation of Nominations and Dispositions Favoring Stepchildren Under Pre-Divorce Instruments,” p. 50, Sandra D. Glazier warns that, given this trend, it’s important to exercise care when defining whether a stepchild will or won’t be considered eligible to inherit under the terms of an estate plan in the event of divorce.
It remains to be seen what new trends in estate planning emerge in 2024, but we’ll continue to look out for them and share them with you.