News

Congress Delays 'Cadillac Tax' and Other ACA-Related Taxes and Fees

Congress on Monday passed the Federal Register Printing Savings Act, which temporarily continued funding federal government activity and appropriated funds to various health-related programs such as the Children's Health Insurance Program, Medicaid and childhood obesity programs.
 
The Act also addressed the effective date for the controversial 40 percent excise tax on high-cost health care, commonly referred to as the "Cadillac Tax," which has been delayed until 2022. At a minimum, the new two-year delay gives employers and plan sponsors more time to adjust health plan design to avoid the Cadillac Tax, legislation that has been unpopular on both sides of the aisle.
 
The Cadillac tax was created as part of the Affordable Care Act largely to help fund benefits to the uninsured under the law. The U.S. Joint Committee on Taxation estimates that delaying the medical device tax will lower revenue by $3.8 billion over a decade, delaying the Cadillac tax will cost $14.8 billion and suspending the health insurance tax will cost $12.7 billion.
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Don't Forget: Winter CLE Blast Tomorrow!

Need CLE hours fast? We can help! The annual Winter CLE Blast is less than a day away. With this program, you can complete up to 11 hours of Dual CLE credit on your own time. Our registration desk will be open from 7 a.m. to 6:45 p.m. on Feb. 21, providing you the flexibility to create your own schedule and take as many or as few hours as you need. Payment will be determined at checkout depending on the number of hours you attend. 

Highlights

  • Flexible to your schedule
  • Up to 11 Hours of CLE
  • Ethics Credits
  • Compliance CLE
  • Live Credit Hours

When: Feb. 21, registration begins at 7 a.m., CST

Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219

 

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Don't Forget– Estate Planning & Probate Forum 2018 This Friday!

The Tennessee Bar Association will host the 2018 Estate Planning & Probate Forum at the Embassy Suites in Franklin on Friday. This event provides six hours of CLE, including an hour of dual credit, and will be focused on timely, relevant topics to help you stay on top of trends affecting this area of law. Legislative updates and the ever-popular Probate Panel will ensure that you leave with the knowledge necessary to advance your practice.
 
Do not miss this opportunity to fulfill CLE requirements while networking with attorneys who share your focus and cultivating relationships with fellow practitioners. Section members receive a discounted rate for the program. Here's the key info: 
 
When: Feb. 23, 2018; registration begins at 8 a.m., CDT
 
Where: Embassy Suites Hotel, 820 Crescent Center Dr., Franklin, TN 37067
 
Topics include:
  • Family Law Issues
  • IRA Planning and Best Practices
  • Medicare Benefits
  • Legislative Updates
  • Probate Panel
 
Speakers/Producers include:
  • Jennifer Exum, Chambliss, Bahner & Stophel PC, Chattanooga 
  • Jeffrey Atherton, Chancery Court, Chattanooga
  • Newman Bankston, Egerton, McAfee, Armistead & Davis, Knoxville 
  • Frank Cardenas, FEDlogic LLC, Nashville 
  • Donald Farinato, Hodges, Doughty & Carson PLLC, Knoxville 
  • Sandra Garrett, The Board of Professional Responsibility, Brentwood 
  • Kathleen Gomes, Probate Court of Shelby County-Division One, Memphis
  • David Parsons, Attorney At Law, Nashville 
  • Joel Roettger, Gentry, Tipton & McLemore, Knoxville 
  • Stacy Roettger, The Trust Company of Knoxville
  • Albert Secor, Southeastern Trust Company, Chattanooga

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Write it Up: TBJ Fiction Contest is Now Open

The Tennessee Bar Journal's Second Annual Fiction Contest is underway! We know that in your real job you don't get to make stuff up, so now is your chance to be loose with the facts and write wildly creatively. Send your fiction in by March 12 to be considered. The winning entry will be published in the June 2018 issue of the Journal, and the author will receive a $100 gift card from a favorite independent bookstore.

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Nashville DA’s Office Focusing on Elder Abuse

Nashville’s District Attorney General has appointed a prosecutor to focus exclusively on crimes against elderly people, The Tennessean reports. DA Glenn Funk has asked Assistant District Attorney Ardie Griffin to assume the role. "With diminished cognitive and physical skills, (elderly people) are prime targets for financial exploitation. Physical and sexual abuse are also disturbingly frequent," Funk said. Griffin said she was shocked by the sheer volume of elder abuse complaints in Davidson County, and the numbers are expected to grow in coming years as baby boomers age into retirement.
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Legislative Updates Affecting Probate in Tennessee

Every year, some changes in the law come with the fanfare, bells and whistles of a Las Vegas jackpot win, such as no inheritance tax or no gift tax. Other revisions to the law are less obvious, but a closer look reveals the treasures to be found in their simplicity and substance. The major legislative changes that went into effect July 1, 2017, surrounding probate are of this sort, less glitz but still noteworthy. 
 
The Tennessee 110th General Assembly enacted SB 769, a bill that revises certain provisions of the probate code related to estate administration. These revisions impose additional responsibilities on the estate's personal representative for the protection and benefit of the beneficiaries. Here are a few of the hidden gems that may affect your estate or a loved one's:
 
No Hands in the Cookie Jar 
Take the case where a personal representative (an executor or administrator) files a claim against the estate for payment of a debt owed to him or her by the decedent. In the past, the notice of the filing was sent by the probate clerk only to the personal representative and his or her attorney. Now, the personal representative seeking payment must provide the probate clerk with the names and current mailing addresses of all residuary beneficiaries of the estate (whose interests will likely be diminished if the claim were awarded) so they can be notified by the clerk within five days of the filing and given the opportunity to protect their interests. [T.C.A. 30-2-313]
 
Crime (Still) Doesn't Pay 
The prior version of the "Slayer Statute" prohibited a person from inheriting from an individual that person killed, unless it was an accident or self-defense. The new version, a much more robust and detailed statute, now requires, among other things: the killer has to give up all benefits of the decedent's estate; it revokes any beneficiary designations for the killer and it eliminates any interest the killer has in real estate as a joint tenant with the decedent. [T.C.A. 31-1-106]
 
Who's Your Daddy? 
To inherit from a decedent, a child born out of wedlock must establish his or her paternity at the earlier of four months from the first publication of the notice to creditors, or one year from the father's date of death. In the case of an amorous decedent, the personal representative can now send a copy of the notice to creditors published in the local newspaper to any purported child and limit the time that child has to establish his or her parent/child relationship with the decedent. If the representative fears that children will come "out of the woodwork" after a decedent's death, this amendment provides a shortened timeframe in which a purported child must establish paternity, which is a blessing to an estate administration that could otherwise be drawn out in costly litigation. [T.C.A. 31-2-105]
 
Signin' My Life Away 
Each recipient of a specific bequest under a decedent's will must sign a receipt that is required to be filed with the probate court by the personal representative in order to close an estate administration. A seemingly innocuous revision now provides that these receipts must be notarized under penalty of perjury or otherwise sworn, where the prior version of the statute only required signatures on receipts for filing with the Court. This is to ensure that the intended recipient of a gift under a will actually receive the gift, although it could be an inconvenience to some beneficiaries. [T.C.A. 30-2-601]
 
No Hostages  
Although the Legislature now requires receipts to be notarized or otherwise sworn (see above), they also realize that some beneficiaries simply will not follow directions. In those cases, the personal representative is allowed to close an estate administration if he or she can show to the Court's satisfaction that diligent efforts have been made to obtain the required acknowledgment from a beneficiary. If the other beneficiaries agree, the estate will not be held hostage by the one recalcitrant beneficiary. [T.C.A. 30-2-601]
 
Jennifer Kent Exum is the section chair of the Tennessee Bar Association's Estate Planning and Probate Section. Exum is Of Counsel at Chambliss and has practiced law for nearly a decade, primarily in the areas of estate administration, estate planning, conservatorships, tax, estate-related litigation and general civil litigation. She holds degrees from Northwestern University and the University of Tennessee College of Law. Exum can be contacted at 423-757-0297 or jexum@chamblisslaw.com.
 
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Call for Mentors

Tennessee elder law attorneys:
 
From time to time, we have new attorneys that would like to begin their legal careers in elder law. The Elder Law Section would like to assist these individuals in learning the practice of elder law in Tennessee by encouraging its members to become mentors through the Tennessee Bar Association’s Mentoring Program. Most of us have enjoyed someone helping us with this in the past as we learned the ins and outs of this challenging area. Becoming a mentor helps to address certain obstacles while fostering mutually beneficial relationships and reducing the isolation experienced by some beginning lawyers, to generally benefit the legal profession as a whole.  
 
If you are interested, you can sign up to become a mentor here or apply to become a mentee here.
 
Section Chair
TBA Elder Law Section
 
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Considering Pet Trusts

Estate planning is a complex, nuanced process, so great care must be taken in dealing with the many critical decisions involved. An often-overlooked aspect of this process is considering care for a pet in the event of the grantor’s disability or death. As animals almost completely rely on a caretaker for their basic needs, this is a truly important designation. 
 
Pet ownership helps aging humans maintain an active lifestyle and overcome feelings of loneliness and depression. Including a pet trust in one’s estate plan allows persons at every stage of life to enjoy the benefits of pet ownership while overcoming the concern many caring pet owners express, “but what if something happens to me?  Who will care for my pet then?” A pet trust can answer these questions and help assure quality care for the lifespan of the pet.
 
Animals with especially long lifespans, such as horses (average lifespan of 30 years), birds (15-60 years, depending on species), tortoises (40-100 years, depending on species), and certain other reptiles (tuataras – a type of lizard native to New Zealand –  can live more than 100 years), can benefit from having an estate plan in place that includes care of these animals.
 
When constructing a pet trust, it is important to provide funding for the long-term care of the pet. It can be wise to designate a trustee to oversee the trust funds designated for the care of the pet and a different person to serve as caretaker of the animal. In this way, sufficient checks and balances may be put in place so that adequate care of the animal is assured and the possibility of malfeasance is minimized.
 
A pet trust may be an appropriate estate planning device in any number of situations, from elderly folks with one lap pet to large animal owners who want to provide long-term care. By keeping these arrangements in mind, we can better serve our clients and the animals that depend on them.
 
Esther L. Roberts is an East Tennessee Delegate of the executive council and served as inaugural chair for the Tennessee Bar Association's Animal Law Section. Roberts is the CEO of Global IP, a law firm specializing in intellectual property and IP mediation and founder of Tennessee Pet Trusts. She holds degrees from Lipscomb University and the University of Tennessee College of Law. Roberts can be contacted at 865-607-9780 or esther@globalipam.com

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Court Clarifies Law on Ownership of Funds Withdrawn from Joint Account

The Tennessee Supreme Court has unanimously ruled that, when one spouse unilaterally withdraws money from a married couple’s joint bank account and places it in a certificate of deposit, the money is no longer joint property and belongs to the spouse to whom the certificate of deposit was issued. The opinion in In Re Estate of Calvert Hugh Fletcher was authored by Justice Sharon G. Lee.

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Tennessee Supreme Court Clarifies Standards for Contesting a Will

The Tennessee Supreme Court reversed previous rulings that dismissed a lawsuit contesting the will of a Hamilton County man who died in 2015. In a 2013 will the deceased, Dr. J. Don Brock, left behind a sizeable estate to his wife, two stepdaughters and two children from a previous marriage, but excluded five children from the previous marriage. The Supreme Court declined to adopt a broad rule precluding persons disinherited by successive wills from ever bringing a will contest. Instead, the court ruled that parties may establish standing to contest a will by showing that they would be entitled to share in the decedent’s estate if the challenged will, or challenged wills, were set aside or no will existed and the laws of intestacy applied. Justice Cornelia A. Clark authored the court's unanimous opinion.

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CLE on Special Needs Trusts Planned for Nov. 16

A new CLE on Special Needs Trusts will be held Nov. 16 at the Tennessee Bar Center in Nashville. This program will navigate through the tax code to maximize advantages for Qualified Disability Trusts and discuss ethical considerations of using a trust to qualify for Medicaid. There are many duties and ethical considerations associated with serving as a trustee – learn about these issues in this specialized program. 
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Knoxville Lawyer Named Federal Administrative Law Judge

Knoxville attorney Benjamin Burton has been selected to serve as an administrative law judge with the Social Security Administration. He will serve at the Office of Disability Adjudication and Review in St. Louis. Burton worked for the Social Security Administration prior to entering private practice and is one of only 61 Board Certified Social Security Trial Specialists nationwide.
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Employment, Elder Law are Column Topics in Current TBJ

Columnists in this month's Tennessee Bar Journal cover a variety of topics. Edward Phillips and Brandon Morrow take on public employers and the battle over gun rights; Monica Franklin surveys services and rights for seniors; and Bill Haltom's shares his take on women in the courtroom. Read the October issue.

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Free Legal Advice Clinic in Maryville

Volunteer attorneys from the Blount County Bar Association will join staff attorneys from Legal Aid of East Tennessee to provide free advice on various legal matters. The public will be able to seek advice on topics such as adoption, child custody and support, divorce, elder law, foreclosure, identity theft, personal injury, VA benefits, wills, worker’s comp, and more.  Legal help will be available on a first come, first served basis. The clinic is open to the public. No appointment is necessary. The Advice Clinic is part of LAET’s Pro Bono Project, and is offered in celebration of Pro Bono Month. The event is Oct. 14 from 9 a.m. to 12 p.m.
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Elder Law Basics

Make plans to join us for this exciting program. This program is for attorneys who want to understand what elder law practice is all about or are looking for a quick refresher course on the basics. Two sessions will focus on government benefits, this will include Medicaid and a review of VA benefits. Speakers will address best practices for Power of Attorneys and help you identify the client's needs and determining capacity. Click here to sign up today.

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Knox County Lawyer Suspended

The Tennessee Supreme Court today suspended Knox County lawyer James Lester Kennedy from the practice of law for one year. Kennedy served as the executor of an estate that was opened in 1987. In 2009, the beneficiaries discovered that the estate had not been closed, that Kennedy had ignored repeated orders by the Court to appear and settle, and in 2000, the Court had retired the case due to inactivity. Kennedy was  found in contempt and the Court removed him as executor.   
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Item of Interest

Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

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Elder Law Forum 2017 This Friday

The Elder Law CLE Forum will be held this Friday at the ATT Building in downtown Nashville. This full-day forum offers essential and practical material for practicing Elder Law attorneys and those interested in Elder Law. Registration is still open, so sign up or get more information now

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Disability Rights TN Conducting Survey on Needs and Resources

Disability Rights Tennessee is conducting a survey to gather information from people with disabilities, family members, service providers and professionals to help shape the work of the organization. Attorneys working in the disability rights field are asked to contribute their thoughts. Others are asked to share the survey with friends and colleagues in the disability rights field, so an accurate picture of the needs of those with disabilities can be compiled. The deadline to respond is July 15. For more information contact DRT at (800) 342-1660 or gethelp@disabilityrightstn.org.

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New Senior Law Website Launched

West Tennessee Legal Services has launched a website, TnSeniorLaw.org, to provide legal information and resources to Tennessee senior citizens. The site includes nearly 60 printable factsheets and informative videos on legal issues relevant to seniors, including conservatorships, long-term care and Medicaid. The project was made possible by a Serving Tennessee Seniors grant and adapted some topics from the TBA's Senior Law Handbook. 

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July TBJ: Mentors, Annuities and the Challenges of Change

Covington lawyer Amber Griffin Shaw writes about how having a mentor in Houston Gordon made all the difference in her law practice. Read her story — and his advice — in the July Tennessee Bar Journal. Knoxville lawyer Glen A. Kyle writes about planning options for spousal annuities. President Lucian T. Pera writes about the challenges of change – whether it be in the changing of leadership at the helm of the TBA, the need for improvements in indigent defense for Tennessee’s least-privileged citizens, or how lawyers respond to the dramatic changes “facing not just the profession or the business of lawyers, but the whole market for the delivery of legal services.”

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Elder Law Section to Meet at Annual Forum

Please make plans to join the TBA Elder Law Section for a lunch business meeting in conjunction with this year’s Elder Law Forum.


TBA Elder Law Section Lunch Business Meeting
Friday, July 14, Noon – 1 p.m. Central Daylight Time
AT&T Building Auditorium, 333 Commerce Street in Nashville


Please note that you do not have to be registered for the TBA Elder Law Forum to attend the Section’s lunch business meeting, but LUNCH WILL ONLY BE PROVIDED FOR SECTION MEMBERS WHO RESPOND that they will attend this lunch business meeting.

To confirm that you will attend the TBA Elder Law Section Lunch Business meeting, please respond to Wil Hammond - NO LATER THAN FRIDAY, JULY 7.

If you have not yet registered for the TBA Elder Law Forum, there is still time to do so online or by calling 615-383-7421.

This full-day program, sponsored by the Elder Law Section of the Tennessee Bar Association, offers essential and practical material for practicing elder law attorneys. The program will cover topics affecting seniors who reside in Tennessee. It provides 4.75 General CLE credit hours and 1.5 Dual hours.

Some of the highlights include:

  • Special Needs Trusts
  • ABLE TN
  • Nursing Home Law Developments
  • Medicare Issues
  • Estate Planning, Wills and Tax Implications
  • Legislative Update

The program will run from 8:30 a.m. – 4:15 p.m.

We hope to see you there!

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LAET to Host 3 Legal Clinics for Seniors Thanks to Grant

Legal Aid of East Tennessee will host three legal clinics for seniors in Knoxville this month, thanks to the “Serving Seniors” grant and The Community Foundation of Middle Tennessee. The first clinic will be held June 13 from 9:30 a.m. to 10 a.m. at the Frank Strange Senior Center in Lovell Heights, the second will be on the same day from 10 a.m. to noon at the Corryton Senior Center, and the third will be on June 15 at 1 p.m. at the South Knoxville Senior Center. Each session will continue until everyone present has been served, and no appointment is necessary. The grant is being administered by the Community Foundation through the settlement of a lawsuit against SeniorTrust and ElderTrust.
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Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.

How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines at http://www.tba.org/submit-an-article, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.

If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Commission on CLE & Specialization at http://www.cletn.com/.

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ABLE, Nursing Home Law, Estate Planning and More at 2017 Elder Law Forum

The TBA's annual Elder Law Forum will be held July 14 at the AT&T Building in downtown Nashville. Sessions will cover ABLE, Special Needs Trusts, Medicare bundled billing, estate planning, wills and corresponding tax implications. Legislative updates will be provided to include information regarding nursing home law developments and regulations. A new session will address how to avoid pitfalls involving families and the representation of elders.

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