CBA TRUST AND ESTATE SECTION STATUTORY REVISIONS COMMITTEE AGENDA December 15, 2016

Transcription

1 CBA TRUST AND ESTATE SECTION STATUTORY REVISIONS COMMITTEE AGENDA December 15, Introductions 2. Approval of November 17, 2016 Minutes 3. Announcements 4. SRC Approved Proposals a. Active Matters Work to Finalize Required Typographical correction to the new Uniform Trust Decanting Act Stan Kent b. Inactive Matters Approved by SRC but Not Moving Forward for Various Reasons Proposed Amendment to John Burrus 5. Legislative Report Jeremy Schupbach 6. Unapproved Matters under Consideration by SRC Reports from Subcommittees a. UTC Subcommittee - Chair Dennis Whitmer b. HSA Funds Subcommittee - Chair Gordon Williams ON HOLD c. Deposit of Original Documents Subcommittee Co-Chairs Tim Bounds and Pete Bullard d. Uniform Divided Trustee Act Subcommittee Chair Taylor Dix e. Legislation Review Joint Subcommittee Chair Michael Holder f. Proposed Amendment to Comply with IRC 1.643(a)(3) Chair Eugene Zuspann Page 1 of 2

2 g. Public Administrator Subcommittee Chair Melissa Schwartz h. Transfer on Death of Vehicles Chair Julie McVey i. Advance Legislative Response Team (ALRT) Chair Spencer Crona j. Authorize Revisor to Publish Comments to Uniform Acts Chairs Sonny Wiegand and Susan Boothby 7. Report from Elder Law Section Arlene Barringer 8. Report from Other Sections of the Bar 9. New Matters a. Restoration of T&E Section Intake Form; continue discussion Josie Faix b. Revised Uniform Unclaimed Property Act - Jeremy Schupbach and Darla Daniels 10. Passed Proposals for Inclusion in Omnibus Bill or Stand Alone Legislation a. Bankruptcy/Inherited IRA s b. Changes to the Uniform Power of Appointment Act c. Disclosure of Fiduciary Fees & Page 2 of 2

3 1. Welcome and Introduction CBA TRUST AND ESTATE SECTION STATUTORY REVISIONS COMMITTEE MINUTES November 17, 2016 Josie M. Faix called the meeting to order at 1:38 p.m. The attendance sheet for the October 2016 meeting was misplaced. If you added your name or corrected your address on last month s attendance sheet, please make the same addition or correction on this month s attendance sheet. 2. Approval of Minutes The minutes of the October 20, 2016 meeting were approved unanimously. 3. Announcements None. 4. SRC Approved Proposals a. Active Matters Work to Finalize Required With respect to the proposed correction the Uniform Trust Decanting Act, we are still waiting to hear back from those staffing the Statutory Revisions Committee (SRC). Senator. Holbert initially indicated he did not believe our proposed correction furthered the mission of SRC as it would add (as opposed to delete) language. Stan Kent indicated that this issue has since been referred for a technical correction by the Uniform Law Commission (ULC). Ultimately, the issue can be fixed by a reviser s bill; legislation sponsored by SRC; legislation initiated by ULC; or our next omnibus bill. b. Inactive Matters Approved by SRC but Not Moving Forward for Various Reasons Proposed Amendment to , C.R.S. John Burrus 5. Legislative Report (Jeremy Schupbach, CBA, jschupbach@cobar.org) Jeremy provided a summary of the election results from earlier this month. In general, Colorado did not experience a real change in its political landscape. 1

4 Republicans still control the Senate but, importantly, Senator Wood lost her seat. Democrats still control the House, even though Representative Priola maintained his seat, as Democrats picked up three additional seats. Governor Hickenlooper will remain in his position as he is not likely to participate in the newly elected administration. The membership of the Colorado Commission on Uniform State Laws (CCUSL) will change as the attorneys serving as Commissioners will likely be more Republican than Democrat. Senator Steadman will continue as a Commissioner but not as a legislative voting member; Senator Gardner will take his place in that capacity. Even though Senator Woods is gone, we will still likely see another version of Senate Bill this year. It will be a different form but it should be equally egregious. The question remains as to whom will serve as this year s champion of that effort. Senator Roberts is probably going to return to her probate practice based on term limits, which means she may be replaced with a non-attorney. The number of lawyer-legislators is now 11 out of 100, which is the lowest that number has been in several years. This means will face bigger challenges than normal as new legislators will have a low level of legal expertise. This is a nationwide trend. Bills that will or may affect our Section during the upcoming year include: Authorize Revisor to Publish Comments to Uniform Acts; and Uniform Family Law Arbitration Act. The Uniform Trust Code will not be ready to run until the following year. Finally, since Proposition 106 passed, we need to review the proposed statutory language (once it is available) to determine the nature and extent of any clean-up that may be needed. Another group may pursue this issue and we could hopefully have input on that process. At this point, we are not even sure the date such provisions will be effective. 6. Unapproved Matters Under Consideration by SRC Reports from Subcommittees a. UTC Subcommittee (Dennis N. Whitmer, Chair, dnwhitmer@hfwpc.com) The subcommittee is almost finished with Part 10; thereafter, it will tackle Part 11, which covers the miscellaneous provisions. Upon Dennis request, Stan Kent agreed to provide thoughts and feedback on Part 11. Each working group has been asked to prepare a summary overview of the changes made to the Uniform Trust Code. The subcommittee anticipates the summaries will help the overall review process. Part 5 includes the protection provisions (e.g., creditor claims). While the subcommittee wanted to include them, Part 5 is being reserved for now based on 2

5 its controversial provisions. Once the remaining Parts are cleaned up and approved, the subcommittee will go back to Part 5. The subcommittee hopes to complete its work by December so that we can start discussing during the January meeting for this committee. Any finished Parts have been posted on the website so that this committee can start reviewing. The subcommittee has not attempted to change the original comments. It has provided additional comments based on its suggested changes. Those comments will likely help our committee members but it is unclear whether they will be published. b. HSA Funds Subcommittee (Gordon Williams, Chair, No report. c. Deposit of Original Documents Subcommittee (Timothy Bounds, Co-Chair, and Peter W. Bullard, Co-Chair, The subcommittee met on November 11, 2016 and will meet again on December 2, 2016 to continue its review. The subcommittee anticipates that it will decide in December when it will be ready to present to this committee. d. Uniform Directed Trustee Act Subcommittee (Taylor M. Dix, Chair, The subcommittee did not meet in November 2016 as planned; Darla Daniels will follow up with Taylor. In the meantime, Kevin Millard indicated there was a ULC drafting committee meeting at the end of October; two additional meetings are planned at this point. e. Legislation Review Joint Subcommittee (Michael D. Holder, Chair mdholder@aol.com) No report. f. Proposed Amendment to Comply with IRC 1.643(a)(3) (Eugene P. Zuspann II, Chair, ezuspann@zuspann.com) See two handouts for this issue. Eugene has discussed this issue with quite a few people as it pertains to purely discretionary trusts. The Orange Book Forms do not track well with this concept so it may be difficult to integrate. Eugene and Darla Daniels prefer the proposed Arizona language (which came from ALI-ABA materials) as they believe it is 3

6 cleaner; however, the language is really designed for instances when a professional trustee is serving; the word qualified may not be necessary. There does not seem to be much movement on this issue nationwide. The Tax Section is aware the issue is on the horizon. This committee is asked to review the handouts on this issue prior to the December 2016 meeting but Eugene indicated they may not be a need to vote until the Orange Book Committee completes its review of the issue. g. Public Administrator Subcommittee (Melissa R. Schwartz, Chair, mschwartz@steenrodlaw.com) See handout for revised proposed guidelines. Melissa spoke with Public Administrators statewide. The meeting was not well attended so she has only received minimal feedback. There are some concerns about perceived micro-management. The proposed guidelines will not be presented as a statutory change. Melissa also did not think they would be issued in the form of a Chief Justice Directive. The subcommittee requested this committee s approval before the proposed guidelines were presented to the Probate Advisory Workgroup (PAW). If approved, the subcommittee may suggest a few statutory changes for consistency (e.g., amount of bond and accounting issues). Upon request, Melissa provided an overview of the proposed guidelines, along with the reasons for the same. The main purpose is to supplement the minimal Public Administrator statutes and to provide consistent and streamlined procedures overall. The guidelines should prove extremely help to new Public Administrators. A motion was made to approve the guidelines in the current form so that the subcommittee can present the same to PAW. There was some discussion as to conflicts and self-dealing. The motion passed unanimously. h. Transfer on Death of Vehicles (Julia McVey, Chair, jmcvey@mcveylaw.com) The subcommittee is still trying to coordinate a meeting with Representative Van Winkle. i. Advanced Legislative Response Team (Spencer J. Crona, Chair, scrona@brownlaw.estate) The subcommittee is meeting on November 18, Efforts were essential on hold until after the election was complete. Based on the results, the 4

7 subcommittee expects responses to various pieces of legislation will be required. At the meeting, the subcommittee will direct its immediate efforts towards early education for legislators. j. Authorize Revisor to Publish Comments to Uniform Acts (Sonny Wiegand, Co-Chair, and Susan Boothby, Co-Chair, The bill will be presented the CCUSL meeting on November 18, Jeremy Schupbach indicated that the bill is universally hated by all CBA Sections. Some have already voted to formally oppose the bill as written (including Elder Law Section). Steve Brainerd, Letty Maxfield and Darla Daniels will be at the meeting to discuss concerns. 7. Report from Elder Law Section (Arlene S. Barringer, Liaison, The bill concerning the proposed office of public guardian is almost complete. Elder Law Section approved its current form and it will be offered by Representative Young. The bill establishes a three-year pilot program for the office, which will take place in Denver, Montrose and Otero Counties. The Fiduciary Entity Representation Subcommittee was formed by Elder Law Section to review the issue of corporations unrepresented as fiduciaries. It will be chaired by Scott Challinor. Gordon Williams will be this committee s liaison. If a statutory recommendation is made, we will likely form a joint subcommittee with Elder Law Section. Mary Catherine Rabbitt is retiring from the Legal Center for People with Disabilities and Older People in coming months, which will be a huge loss. At this month s meeting, Mary Catherine announced that the new cost-of-living-adjustments are available at the Colorado Department of Health Care Policy and Financing website; the increase is minimal. Elder Law Section is getting a new listserv; Sarah Leah Golombek will be chairing that effort. There will be an assisted living advisory committee through the Colorado Department of Public Health and Environment and those interests can apply to participate. Dolores C. Martinez Hernandez reported that a writ for certiorari is presently pending on the matter she previously presented to the Committee and to Executive Council but it looks like the matter may be settled in the meantime. Dolores expressed her gratitude for the various members of Elder Law Section who assisted in that effort. 5

8 8. Report from Other Sections of the Bar None. 9. New Matters C. Jean Stewart is interested in starting a subcommittee to review alternative dispute resolution provisions in estate planning documents and the enforcement of the same by the courts. A sign-up sheet was circulated for anyone who might be interested in that proposed subcommittee. Additionally, those interested may contact Jean or Kelly Cooper directly. Josie would like the intake form reinstituted; see handouts. Again, it would be completed by anyone interested in starting a new subcommittee. Various members expressed a concern that it may stifle ideas that are raised at the monthly meetings, which often result in good work by this committee. Josie indicated it was not intended to stifle ideas but to ensure that adequate information is provided and potential stakeholders are identified before a subcommittee is instituted. Connie Eyster indicated that the form may have been approved several years ago by Executive Council, which means that it should be used consistently. Josie will present the issue to Executive Council and report back next month. With respect to the Revised Uniform Unclaimed Property Act, Jeremy Schupbach and Darla Daniels continue to try and schedule a meeting to discuss the Act with the Bankers Association. There is no rush to move forward on this issue until the stakeholders are approached. Eugene Zuspann questioned whether , C.R.S. should be revised based on this year s legislation. Under , C.R.S., the effective date is 1993 and not Leia Ursery indicated that she thought the provision was okay as it references back to one of the most significant revisions for determination of heirships statute. Last year s legislation was more of a reorganization of the statute and clarification than a significant changing to its scope and purpose. Jared Balson asked whether there was a committee or subcommittee working on Constitutional notice issues in probate matters. If anyone is interested in exploring notice issues further, contact Jared. Josie Faix announced that Laurie Hunter tragically lost her son in November. Anyone interested in contacting Laurie with a note, please contact Josie to obtain her personal contact information. 10. Passed Proposals for Inclusion in Omnibus Bill or Stand Alone Legislation Bankruptcy/Inherited IRAs; Changes to the Uniform Power of Appointment Act; and 6

9 Disclosure of Fiduciary Fees under and , C.R.S. Meeting adjourned at 3:00 p.m. Respectfully submitted, /s/ Leia G. Ursery Leia G. Ursery 7

10 CBA TRUST & ESTATE SECTION STATUTORY REVISIONS COMMITTEE Sub-Committee Composition and Connections A. At Inception of Sub-Committee. 1. Initial Sub-Committee Chairs and Members. Please consider soliciting the participation of T&E Section members who may have a perspective that is not otherwise represented on the Sub-Committee. 2. Please review the list of CBA Sections and Committees attached to this form and identify those that may have some interest in the subject or results of your Sub- Committee s work. 3. Please consult with the CBA s Legislative Liaison (Michael Valdez) and note any other legislative efforts within or outside the CBA that may be related to or affected by your Sub-Committee s work.

11 B. Prior to Seeking SRC s Approval of Sub-Committee s Proposed Legislation. 1. Current Sub-Committee Chairs and Members. 2. Please update the list provided in A.2. above. What steps have been taken to integrate these CBA Sections and Committees in your Sub-Committee s work? (Please note any issues with a Section or Committee that has not been resolved.) 3. Please update the list provided in A.3. above. What steps have been taken to address other legislative efforts that may be affected by your Sub-Committee s proposed legislation? (Please note any issues with a sponsor of related legislation that has not been resolved.) 4. Please describe any anticipated opposition to your Sub-Committee s proposed legislation from within the Trust & Estate Section, and describe the steps taken to address the opponent s concerns.

12 COLORADO BAR ASSOCIATION COMMITTEES ACCESS TO JUSTICE COMMISSION AMICUS BRIEF COMMITTEE ANIMAL LAW COMMITTEE AWARDS COMMITTEE BUDGET COMMITTEE CANNABIS LAW COMMITTEE COLORADO BAR LEADERSHIP TRAINING COMMITTEE (COBALT) COMMITTEE FOR BALANCED LEGAL CAREERS DIVERSITY IN THE LEGAL PROFESSION COMMITTEE ENVIRONMENTAL SUSTAINABILITY COMMITTEE ETHICS COMMITTEE INTERPROFESSIONAL COMMITTEE JOINT MANAGEMENT COMMITTEE LAWYERS PROFESSIONAL LIABILITY COMMITTEE LEGAL FEE ARBITRATION COMMITTEE LEGISLATIVE POLICY COMMITTEE MOCK TRIAL COMMITTEE MODERN LAW PRACTICE INITIATIVE NOMINATING COMMITTEE PLANNING AND BUDGET COMMITTEE PROFESSIONALISM COORDINATING COUNCIL SPANISH LAWYERING COMMITTEE TRANSITIONS COMMITTEE

13 COLORADO BAR ASSOCIATION SECTIONS AGRICULTURE LAW SECTION ALTERNATIVE DISPUTE RESOLUTION SECTION BUSINESS LAW SECTION Antitrust Subsection Bankruptcy Subsection E-Commerce Law Subsection Financial Institutions Subsection Franchise Law Subsection International Transactions Subsection Law School Liaisons Mergers & Acquisitions Subsection New Lawyers Subsection Nonprofit Entities Subsection Privately Held Businesses Subsection Securities Subsection CIVIL RIGHTS SECTION COMMUNICATIONS & TECHNOLOGY SECTION CONSTRUCTION LAW SECTION CRIMINAL LAW SECTION DISABILITY LAW SECTION ELDER LAW SECTION ENVIRONMENTAL LAW SECTION FAMILY LAW SECTION GOVERNMENT COUNSEL SECTION HEALTH LAW SECTION IMMIGRATION SECTION INTELLECTUAL PROPERTY SECTION INTERNATIONAL LAW SECTION JUDICIAL LIAISON SECTION JUVENILE LAW SECTION LABOR & EMPLOYMENT LAW SECTION LITIGATION SECTION MILITARY AND VETERANS AFFAIRS SECTION NATURAL RESOURCES AND ENERGY LAW SECTION REAL ESTATE SECTION SOLO SMALL FIRM SECTION SPORTS & ENTERTAINMENT LAW SECTION TAXATION LAW SECTION TRUST & ESTATE SECTION WATER LAW SECTION WORKERS COMPENSATION SECTION YOUNG LAWYERS DIVISION