State legislatures have been very busy on several trust and estate related fronts. Here’s an update on some key planning developments across the country, through Nov. 30, 2019.
Estate and Gift Tax
When the Tax Cuts and Jobs Act (the Act), which was enacted in December 2017, doubled the federal estate, gift and generation-skipping transfer tax exemption amounts, this caught by surprise those states that had exemption amounts tied to the federal amount. Some states that didn’t intend to offer exemption amounts of this magnitude have still been parsing through the confusion that ensued. Here’s some of the latest state-level activity on the estate and gift tax front:
Connecticut. Connecticut had a $2 million gift and estate tax exemption amount in 2017.1 On Oct. 31, 2017, Gov. Dannel P. Malloy signed this state’s budget into law, increasing the estate and gift tax exemption amount to $2.6 million for those dying on or after Jan. 1, 2018 and to $3.6 million for those dying on or after Jan. 1, 2019.2 In 2020, the exemption amount was slated to match the federal exemption. However, when the Act doubled the federal exemption, Connecticut passed legislation to decouple from the enhanced federal exemption amount in 2018. Unfortunately, in
May 2018, Connecticut enacted two conflicting pieces of legislation. The first statute gradually increased the exemption through 2022, and in 2023, the exemption amount would have matched the federal exemption.3 The second statute conformed to Gov. Malloy’s original budget bill with increased exemptions for 2018 and 2019, but provided for a $5.49 million exemption in 2020 with no increase thereafter.4 The Connecticut legislature has since resolved the conflict. The Connecticut estate and gift tax exemption is $3.6 million for 2019, $5.1 million for 2020, $7.1 million for 2021 and $9.1 million for 2022.5 For the year 2023 and beyond, Connecticut’s exemption amounts will equal the federal exemption amounts.6
Connecticut remains the only jurisdiction in the country with a true gift tax. Gov. Ned Lamont’s first budget proposal for the 2020-21 fiscal year repealed the Connecticut gift tax retroactively to Jan. 1, 2019.7 However, gift tax repeal wasn’t included in the budget proposal that was released in June 2019.
Importantly for planning purposes, Connecticut doesn’t impose a tax on gifts of tangible or real property located outside the state.8 There’s also a $15 million estate and gift tax cap effective Jan. 1, 2019, meaning no further estate or gift tax will be owed once the cap is reached. This cap reduces the prior legislative cap of $20 million.9 Using current rates, the new cap will generally kick in for estates exceeding approximately $130 million (the old cap applied to estates exceeding $170.5 million).
Hawaii. In June 2019, this state clarified that Hawaii’s $5.49 million estate tax exemption, which is applicable to individuals dying after Dec. 31, 2017, wasn’t adjusted for inflation and remains the same for those dying after Dec. 31, 2018.10 For individuals dying after Dec. 31, 2019, Hawaii added a top estate tax rate of 20% on estates valued over $10 million.11
Maryland. On May 15, 2014, this state increased its estate exemption amount from $1 million in 2014 to $1.5 million in 2015, $2 million in 2016, $3 million in 2017 and $4 million in 2018.12 Beginning in 2019, the state exemption amount would have been linked with the federal exemption amount. To prevent this, Maryland enacted new legislation to set the state exemption amount in 2019 and thereafter to $5 million.13 Maryland also continues to impose an inheritance tax, which is triggered based on the relationship of the decedent to a beneficiary. The inheritance tax rate is 10% for assets transferred to certain beneficiaries.
Minnesota. Pursuant to legislation signed by Gov. Mark Dayton on May 30, 2017, Minnesota’s estate tax exclusion amounts were increased from $1.8 million to: $2.1 million for individuals dying in 2017; $2.4 million for individuals dying in 2018; $2.7 million for individuals dying in 2019; and $3 million for individuals dying in 2020 and thereafter.14
New York. Effective for those dying on or after Jan. 1, 2019, New York’s exemption amount is linked to the 2010 federal exemption amount of $5 million, indexed for inflation.15 Accordingly, the doubling of the federal amount won’t affect the New York exemption amount.16 However, the New York estate tax regime maintains its built-in “cliff.”17 Only estates that are less than or equal to the exemption amount on the date of death will pay no tax; those estates that are between 100% and 105% of the exemption amount are subject to a rapid phase-out of the exemption; and those estates that exceed 105% of the exemption amount will lose the benefit of the exemption amount entirely and be subject to tax from dollar one.
While New York doesn’t impose a current gift tax, the New York gross estate of a deceased resident is increased by the amount of any taxable gift made within three years of death, if the decedent was a New York resident at the time the gift was made and at the time of death. New York’s 3-year gift add-back expired for individuals dying on or after Jan. 1, 2019 but was extended until Dec. 31, 2025 as part of the 2019-20 Executive Budget (the Budget), signed by Gov. Andrew Cuomo on April 12, 2019. The final legislation excepts from the add-back gifts made between Jan. 1, 2019 and Jan. 15, 2019, the period prior to the Budget’s release.
Note that nonresidents who own real or tangible property located in New York won’t owe any New York estate tax if the value of their New York situs property is below the New York exemption amount at the date of death. There’s no longer a requirement to calculate the estate tax as if the nonresident was a resident and apportion the tax based on the percentage of property located in the state.
Rhode Island.Pursuant to a law signed on June 19, 2014, this state increased its estate tax exemption amount to $1.5 million in 2015, indexed for inflation.18 For 2019, the estate tax exemption amount increased to $1,561,719.
Vermont. In May 2016, this state changed the way it calculates its estate tax. For individuals dying on or after Jan. 1, 2016, the estate tax applies only to estates valued at $2.75 million or higher.19 The tax is a flat 16% on the amount exceeding $2.75 million, not from dollar one, as it was previously.20 On June 18, 2019, Gov. Phil Scott signed this state’s budget into law, increasing the estate tax exemption amount to $4.25 million for those dying on or after Jan. 1, 2020 and to $5 million for those dying on or after Jan. 1, 2021.21 The flat 16% tax will apply to amounts that exceed those levels.
Washington. The current exemption amount is $2 million, indexed for inflation, but there was no inflation adjustment for 2019, so this state’s estate tax remained at $2.193 million.22
Portability
With federal portability, a deceased spouse’s executor can transfer the deceased spouse’s unused exemption (DSUE) amount to the surviving spouse. With federal exemption amounts at all-time highs, portability is increasingly valuable. However, portability generally isn’t available at the state level. That means state exemption amounts are usually use-it-or-lose-it propositions. If one spouse simply leaves everything to the other, the exemption of the first to die is wasted. Ordinarily, some form of credit shelter planning is required to prevent loss of the first-to-die’s state exemption amount. A few states permit portability at the state level.
Hawaii allows portability for individuals dying after Jan. 25, 2012 if the personal representative of the predeceased spouse files a Hawaii estate tax return.23 Maryland’s estate tax exemption became portable in 2019 and, interestingly, is retroactive for spouses who died between 2011 and 2018.24 If the first-to-die’s date of death is 2019 or thereafter and that first-to-die either was a Maryland resident or had Maryland-sitused property for estate tax purposes, the executor must timely file a Maryland estate tax return, calculate the Maryland DSUE and make an irrevocable Maryland portability election. If the first-to-die’s date of death is before 2019, the executor must have filed a federal estate tax return and made a federal portability election. If a federal return wasn’t filed and the deadline for making it has passed, an executor should consider whether the estate is eligible to request an extension. Delaware, by defining its exemption amount by reference to the applicable exclusion amount under federal law, had portability until Delaware repealed its estate tax, effective Jan. 1, 2018. Illinois,25 Minnesota,26 Rhode Island27 and Washington28 currently have portability proposals pending. Rhode Island’s portability proposal would begin to apply to individuals dying in 2019, while the portability proposals in Illinois, Minnesota and Washington would begin to apply to individuals dying in 2020.
Electronic Wills
In today’s technologically advanced society, courts have increasingly been called on to adjudicate the validity of electronic writings purporting to be wills.29 While a controversial topic, states have begun to advance their laws to enter the electronic world. Some allege that the traditional formality of a will execution should be sacrosanct to protect individuals who might be more susceptible to abuse and undue influence and to increase the likelihood that testators will seek professional guidance in this complicated arena. Others argue that will formalities, which date back a couple of centuries, are outdated. They point to the fact that formality generally isn’t required to dispose of much other property—retirement benefits and life insurance require a beneficiary designation; jointly held assets pass by operation of law; and trust agreements might not require all the execution formalities of a will.
The following states have legislation regarding electronic wills:
Arizona. This state enacted legislation, which became effective on June 30, 2019, permitting electronic wills.30 An electronic will must contain the electronic signature of the testator and at least two witnesses who were physically present when the testator signed the electronic will. The electronic will must be kept in the continuous custody of a “qualified custodian.” Under Arizona law, a “qualified custodian” can’t be related to the creator of the will nor be a recipient under the will or related to a recipient and must have a storage system to protect the document from destruction and alteration.31 The qualified custodian must also store photographs of the testator and witnesses on the execution date, copies of their identifying documents and an audio and video recording of the execution.32
Florida.This state enacted an Electronic Documents Act in June 2019, which became effective Jan. 1, 2020, and includes electronic wills.33 An electronic will may be executed before witnesses who aren’t physically present with the testator via audio-video communication technology, provided:34
1. The individuals are supervised by a notary public;
2. The notary public confirms the identity of the individuals who sign as part of an online notarization session;
3. The witnesses hear the signer acknowledge signing the electronic record; and
4. The testator provides verbal answers to a series of questions that must be asked by the online notary public, including: state the names of anyone who assisted you in accessing this video conference; state the names of anyone who assisted you in preparing the documents; and who’s in the room with you?
In response to concerns that vulnerable adults might be susceptible to undue influence, witnesses to a will execution must be physically present if the testator is a vulnerable adult; remote witnessing isn’t permitted. A “vulnerable adult” is an individual who’s at least 18 years old and whose ability to perform daily living activities or provide for his own care or protection is impaired due to a mental, emotional, sensory, long-term physical or developmental disability or dysfunction, brain damage or the infirmities of aging.35
An electronic will can be self-proving if the testator’s acknowledgment and witness affidavits are attached to or logically associated with the electronic record, and the electronic will designates a “qualified custodian” who’s at all times in control of the electronic will. Qualified custodians must: be domiciled or incorporated in Florida; employ a system for maintaining custody of electronic records; and store electronic wills under that system. The qualified custodian must also maintain an audio-video recording of the electronic will online notarization.
Indiana.This state passed legislation permitting electronic wills in 2018.36 Indiana requires the testator’s electronic signature and the electronic signatures of at least two witnesses in the following manner:37
1. The testator and the witnesses must be in each other’s actual presence when electronically signing the electronic will;
2. The testator and witnesses must comply with prompts, if any, issued by the software used to perform the electronic signing or instructions given by the individual, if any, supervising the execution;
3. The testator must acknowledge and sign the electronic will in the actual presence of the witnesses;
4. The witnesses must electronically sign the electronic will in the actual presence of the testator and each other; and
5. The testator or another individual who isn’t a witness must command the software application to finalize the electronically signed electronic will as an electronic record.
Nevada. This was the first state to enact legislation allowing electronic wills in 2001, which was amended in 2017 to revise the description of an electronic will, establish the circumstances in which an electronic will is self-proving and establish the qualifications and duties of a qualified custodian.38 In addition to the testator’s signature, an electronic will created in Nevada must contain at least one of the following:39
1. An “authentication characteristic” of the testator, which is a characteristic unique to that person, such as a fingerprint, retinal scan, voice recognition, facial recognition, video recording or digitized signature;
2. The electronic signature and electronic seal of a notary public who was present with the testator; or
3. The electronic signature of two or more attesting witnesses who were present with the testator.
An electronic will is self-proving if the witness affidavits are attached to or logically associated with the electronic will, and the electronic will designates a “qualified custodian.”40 A qualified custodian can’t be an heir of the testator or a beneficiary or devisee under the electronic will and must store the electronic will in a system that protects it from destruction, alteration or unauthorized access and detects any change to an electronic record.41 The qualified custodian must maintain an audio-video recording of the signing by testator, attesting witnesses and notary public.42 Nevada also specifically provides for electronic inter vivos trusts.43
Uniform Electronic Wills Act. In July 2019, the Uniform Law Commission (ULC) promulgated the Uniform Electronic Wills Act (UEWA), which gives a testator the ability to electronically execute a will, while reportedly using the protections available to an individual executing a traditional will on paper, as well as providing execution requirements which, if followed, will produce a valid self-proving will.44 The UEWA adapts the formalities of writing, signing and attesting a will to the electronic era by incorporating the following policies: when signing a will electronically, the will must exist in the electronic equivalent of text (no audio or video wills); the requisite number of witnesses must be physically present or, in states that will allow it, virtually present for the signing of the electronic will; electronic wills can be revoked the same way as traditional ones, including by a subsequent will or codicil or a revocatory act.45 Additionally, the UEWA requires that the self-proving affidavit be executed at the same time as an electronic will so the affidavit is part of the electronic will. An electronic will should be recognized as valid if it’s valid under the law of the state where the testator was physically located at the time of signing.46 The UEWA doesn’t address the storage of electronic wills as do the statutes in Arizona and Florida. No states have enacted the UEWA yet, but California and Texas introduced electronic wills legislation in 2019.47
Digital Assets
As technology continues to expand, the ownership, transfer and disposition of digital assets present unique challenges. Family members can face many hurdles in unlocking a decedent’s digital information, which can include social media accounts, email accounts and other personal and financial accounts. Practical obstacles include retrieving confidential user IDs and passwords. Establishing rights to access that information is complicated by Terms of Service (TOS) agreements with individual providers (which typically are entered into by clicking “I agree” on account opening). The TOS agreements usually govern the fate of an account on the owner’s death. They can provide that all rights to the account cease on death and that all data will be deleted. State and federal privacy laws and laws that criminalize unauthorized access to computers and prohibit the release of electronic account information present further obstacles.48 The ULC approved a Revised Uniform Fiduciary Access to Digital Assets Act49 (RUFADAA) on July 15, 2015. RUFADAA uses a three-tiered approach:
1. Directions given via an online tool provided by a custodian that can be modified or deleted at all times prevail over any other direction in a will, trust, power of attorney (POA) or other record;
2. In the absence of availability or use of an online tool, a user’s direction in a will, trust, POA or other records prevails; and
3. In the absence of any direction, the TOS agreement controls.
At least 47 jurisdictions have introduced or enacted RUFADAA. Only Kentucky, Louisiana and Oklahoma haven’t introduced or enacted RUFADAA. The following jurisdictions have enacted or introduced some version of RUFADAA: Alabama,50 Alaska,51 Arizona,52 Arkansas,53 California,54 Colorado,55 Connecticut,56 Florida,57 Georgia,58 Hawaii,59 Idaho,60 Illinois,61 Indiana,62 Iowa,63 Kansas,64 Maine,65 Maryland,66 Massachusetts,67 Michigan,68 Minnesota,69 Mississippi,70 Missouri,71 Montana,72 Nebraska,73 Nevada,74 New Hampshire,75 New Mexico,76 New Jersey,77 New York,78 North Carolina,79 North Dakota,80 Ohio,81 Oregon,82 Pennsylvania,83 Rhode Island,84 South Carolina,85 South Dakota,86 Tennessee,87 Texas,88 Utah,89 Vermont,90 Virginia,91 Washington,92 Washington, D.C.,93 West Virginia,94 Wisconsin95 and Wyoming.96
Of those states, here’s the most recent activity:
Enacted RUFADAA in 2018: Georgia, Maine, Missouri, Oklahoma and West Virginia.
Enacted RUFADAA in 2019: Rhode Island and New Hampshire.
Introduced RUFADAA in 2019: Massachusetts, Pennsylvania and Washington, D.C.
In today’s increasingly digital world, advisors should consider speaking with clients about their digital assets, in particular:
1. Creating inventories of electronic data, with log-in IDs and passwords.
2. Ensuring the inventories are stored in a secure and private location and are kept up-to-date.
3. Using providers’ online tools regarding disclosure of digital information, such as Google’s “Inactive Account Manager” or Facebook’s “Legacy Contacts.” Although these tools require individuals to give separate directions to each custodian, RUFADAA defers first to the direction given via a custodian’s own online option.
4. As to the critical second-tier direction that will be respected if an online tool isn’t available or used, including provisions in: (a) wills and trust agreements that expressly deal with disposition of and access to digital assets, and (b) POAs regarding access to digital assets, if that’s desired.
Self-Settled DAPTs
Self-settled domestic asset protection trusts (DAPTs) are created to protect assets from potential creditors while allowing the creator to remain a trust beneficiary. Although most states don’t permit DAPTs, an increasing number of states are sanctioning them. The following states have enacted DAPT legislation: Alaska, Connecticut, Delaware, Hawaii, Indiana, Michigan, Mississippi, Missouri, Nevada, New Hampshire, Ohio, Oklahoma, Rhode Island, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.
Delaware, for example, has sanctioned DAPTs for over two decades. A Delaware DAPT is an irrevocable trust created under Delaware law, with a Delaware trustee. Under Delaware law, the DAPT generally limits the ability of an individual’s creditors to reach the trust assets, while allowing the creator of the trust to remain a trust beneficiary. That includes the right to receive current income distributions, the right to receive a 5% annual unitrust payout and the ability to receive income or principal in the discretion of an independent trustee. Delaware requires a creditor to bring an action against a DAPT in the Delaware Court of Chancery. For claims arising after an individual creates a DAPT, there’s a 4-year statute of limitations.97 For claims arising before an individual creates a DAPT, a creditor must bring suit within four years after creation of the trust or, if later, within one year after the creditor discovered (or should have discovered) the trust.98 For all claims, the creditor must prove by clear and convincing evidence that creation of the trust was a fraudulent transfer as to that creditor.99 A very limited number of creditors can pursue claims against a DAPT. In the family context, a spouse, former spouse or minor child who has a claim resulting from an agreement or court order for alimony, child support or property division incident to a judicial proceeding with respect to a separation or divorce may potentially reach the assets of a DAPT,100 but a spouse whom the client marries after creating the trust may not take advantage of this exception. Accordingly, because future spouses can’t generally assert claims against a DAPT, a client’s children can establish these trusts to protect assets from such claims without providing the financial disclosure that ordinarily is required for enforceable prenuptial agreements.101
In 2019, Indiana and Connecticut enacted DAPT legislation:
Connecticut. This state adopted the Uniform Trust Act, which includes the Connecticut Qualified Dispositions in Trust Act that allows the creation of DAPTs, effective Jan. 1, 2020.102
Indiana. This state permits legacy trusts, a type of DAPT.103 It’s effective for transfers made after June 30, 2019.104
In both Connecticut105 and Indiana,106 as is typically the case in DAPT jurisdictions, the trust must:
1. Be irrevocable;
2. Appoint at least one “qualified trustee:” an individual, other than the transferor, residing in-state or an entity authorized to serve as a trustee in-state;
3. Expressly provide for the DAPT’s state laws to govern its validity, construction and administration; and
4. Contain a spendthrift provision.
In both jurisdictions, a qualified trustee is tasked with: maintaining or arranging for custody of the trust property; maintaining records of the trust; handling of tax returns; and administering the trust.107
In Connecticut, for claims arising after an individual creates a DAPT, there’s a 4-year statute of limitations.108 For claims arising before an individual creates a DAPT, a creditor must bring suit within four years after creation of the trust or, if later, within one year after the creditor discovered (or should have discovered) the trust.109 For all claims, the creditor must prove by clear and convincing evidence that creation of the trust was a fraudulent transfer as to that creditor.110 A limited number of creditors can pursue claims against a DAPT. In the family context, a spouse, former spouse or child who has a claim resulting from an agreement or court order for support, alimony or property division may reach the assets of a DAPT, but a spouse whom the client marries after creating the trust may not take advantage of this exception.111
In Indiana, there’s a 2-year statute of limitations.112 For claims arising before an individual creates a legacy trust, a creditor must bring suit within the later of two years after the transfer to the trust or within six months after the creditor discovered (or could reasonably have discovered) the transfer.113 In the family context, it’s possible to pursue a claim to enforce child support obligations. Spouses can pursue claims against a legacy trust only if it was created after the spouses were married or within 30 days before the marriage.114 When an individual is transferring assets to an Indiana legacy trust, the transferor must sign a “qualified affidavit.”115 The affidavit affirms that the transferor has the right and authority to transfer the property to the trust, the transferor won’t become insolvent as a result of the transfer, the purpose of the transfer wasn’t to defraud creditors, the transferor has no pending or threatened court proceedings against him, the transferor isn’t contemplating filing for bankruptcy and the property transferred into the trust wasn’t obtained from unlawful activities.
For DAPTs created in the matrimonial context, practitioners recommend giving an independent corporate trustee broad discretion to make distributions to a class of beneficiaries, instead of predicating distributions on an ascertainable standard, because a court would likely be less inclined to find such a discretionary interest reachable in divorce.116 Some practitioners also recommend inserting provisions in the documents that require a beneficiary’s spouse to waive marital rights to trust assets each time the beneficiary is eligible to receive a principal distribution, before the distribution can be made, or that require a beneficiary to have a valid prenuptial agreement before being eligible to receive a distribution.
Directed Trusts
Historically, a trustee had responsibility for all aspects of a trust’s administration, including management, investments and distributions. The investment, distribution and administrative responsibilities traditionally associated with the role of trustee can be separated among different parties in a directed trust. An issue in many jurisdictions is the extent to which a trustee can rely on the trifurcation of these obligations. Case law in many states seems to indicate that there’s some level of continuing fiduciary responsibility and oversight. Some jurisdictions have statutes that specifically allow the separation of duties. That number is on the rise.
Several states have enacted legislation to clarify that obligations can be divided in the trust context, so that a trustee can rely on the direction of an investment or distribution advisor, with no responsibility to monitor, oversee or second-guess the advisor.
In July 2017, the ULC approved the Uniform Directed Trust Act (UDTA).117 A nontrustee who’s granted the power to direct the trustee is called a “trust director.” Given the uncertainty about the fiduciary status of a nontrustee who has such powers, the UDTA provides a framework for allocating fiduciary powers and duties between a trust director and trustee.
The trust director is a fiduciary with the same fiduciary duties as a trustee would have in a like position and under similar circumstances. A trustee who acts at the direction of the trust director is liable only for the trustee’s own willful misconduct. Accordingly, a beneficiary’s main recourse for misconduct by a trust director is an action for breach of fiduciary duty against the director, with limited recourse against the trustee to the extent only of the trustee’s willful misconduct.
In 2019, the following states enacted the UDTA: Arkansas,118 Colorado,119 Connecticut,120 Indiana,121 Maine,122 Michigan,123 Nebraska124 and Utah.125 Rhode Island introduced UDTA legislation in 2019.126
In June 2019, Delaware, which pioneered the directed trust mechanism over a century ago, enacted the Trust Act 2019, which includes a new provision that can facilitate creating a directed trust.127 That section expands a trustee’s power to appoint a successor trustee to include the power to appoint multiple successors and additional trustees, with the ability to delegate specific trustee powers to selected trustee(s) and not to other trustee(s). Accordingly, a directed trust structure can be created, for example, by selecting a co-trustee to make all investment decisions, along with the power to direct the other trustee(s). A successor trustee will be a fiduciary only with respect to the powers allocated to that successor trustee.
—The author would like to thank her colleague Jenna M. Cohn, a family wealth advisor at Wilmington Trust, N.A. in New York City, for her assistance with this article.
This article is for general information only and is not intended as an offer or solicitation for the sale of any financial product, service or other professional advice. Wilmington Trust does not provide tax, legal or accounting advice. Professional advice always requires consideration of individual circumstances. Wilmington Trust is a registered service mark. Wilmington Trust is a wholly owned subsidiary of M&T Bank Corporation (M&T).
Endnotes
1. CT. Gen. Stat. Sections 12-391(d)(1)(D), 12-391(e)(1)(C).
2. CT. S.B. 1502 (2017).
3. CT. S.B. 543 (2018).
4. CT S.B. 11 (2018).
5. See supra note 3.
6. Ibid.
7. CT. S.B. 877 (2019).
8. CT. Gen. Stat. Section 12-641.
9. CT. Gen. Stat. Section 45a-107.
10. HI. S.B. 1130 (2019).
11. HRS Section 236E-8.
12. Md. Tax Code Section 7-309(b)(3)(i).
13. Ibid.
14. Minn. Stat. Ann. Section 291.016.
15. N.Y. Tax Law Section 952(c)(2)(B).
16. N.Y. Tax Law Section 952(c)(2)(A).
17. N.Y. Tax Law Section 952(c)(1).
18. R.I. Gen. Laws Section 44-22-1.1.
19. Vt. Stat. Section 7442a(b).
20. Ibid.
21. Vt. H.B. 541 (2019).
22. Wash. Rev. Code Section 83.100.020.
23. Haw. Rev. Stat. Section 236D. See “Instructions for Form M-6 Hawaii Estate Tax Return” (REV. 2018), http://files.hawaii.gov/tax/forms/2018/m6ins.pdf.
24. Md. Code, Tax-Gen. Section 7-309.
25. Ill. H.B. 238 (2019).
26. MN. H.F. 2915 (2019).
27. R.I. H.B. 5635 (2019).
28. WA. H.B. 2061 (2019).
29. See In re Estate of Javier Castro, No. 2013ES00140 (Ct. Common Pleas, Lorain County, Prob. Div., Ohio, June 19, 2013) (will written with two witnesses on Samsung Galaxy Tablet) and In re Estate of Horton, 925 N.W.2d 207 (Mich. Ct. App. 2018) (typed electronic note on decedent’s phone recognized as valid will).
30. Ariz. Rev. Stat. Section 14-2518.
31. Ariz. Rev. Stat. Section 14-2520.
32. Ibid.
33. Fla. H.B. No. 409 (2019).
34. Fla. Stat. Ann. Section 732.522.
35. Fla. Stat. Ann. Section 415.102(28).
36. Ind. Code Section 29-1-21-1.
37. Ind. Code Section 29-1-21-4.
38. Nev. Rev. Stat. Section 133.085.
39. Ibid.
40. Nev. Rev. Stat. Section 133.086.
41. Nev. Rev. Stat. Section 133.320.
42. Ibid.
43. Nev. Rev. Stat. Section 163.0095.
44. See Memorandum from Suzanne Brown Walsh, Turney P. Berry and Susan N. Gray to the Uniform Law Commission (ULC) (May 30, 2019), www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=134c0ae2-a0ae-2752-1497-f47d8c1d9d75&forceDialog=0.
45. Uniform Electronic Wills Act, ULC, www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=43c08ac6-d6e0-bd80-80b2-85c3a6621e1e&forceDialog=0 (July 17, 2019).
46. Ibid.
47. CA. A.B. 1667 (2019); Texas H.B. 3848 (2019).
48. Privacy of Customer Information (47 U.S.C. Section 222); Stored Communications Act (18 U.S.C. Chapter 121 Sections 2701-2712); Computer Fraud and Abuse Act (18 U.S.C. Section 1030).
49. Revised Uniform Access to Digital Assets Act (2015), http://bit.ly/2nwx4E0.
50. Ala. Code Section 19-1A-1.
51. Alaska Stat. Section 13.63.195.
52. Arizona Section 14-13101.
53. Ark. Code Ann. Section 28-75-101.
54. Calif. Prob. Code Section 870.
55. Colo. Rev. Stat. Section 15-1-1501.
56. Conn. Gen. Stat. Section 45a-334b.
57. Fla. Stat. Section 740.001.
58. Ga. Code Ann. Section 53-13-1.
59. Hawaii Rev. Stat. Section 556A-1.
60. Idaho Code Section 15-14-101.
62. Illinois 755 ILCS 70/1.
62. Ind. Code Section 32-39-1-1.
63. Iowa Code Ann. Section 638.1.
64. Kan. Stat. Ann. Section 58-4801.
65. Me. Rev. Stat. tit. 18-C, Section 10-101.
66. Md. Estates and Trust Code Section 15-601.
67. MA. H.B. 3368 (2019).
68. Mich. Section 700.1001.
69. Minn. Stat. Section 521A.01.
70. Miss. Code Ann. Section 91-23-1.
71. Mo. Ann. Stat. Section 472.400.
72. Mont. Code Ann. Section 72-31-401.
73. Neb. Section 30-501-518.
74. Nev. Rev. Stat. Section 722.010.
75. N.H. Rev. Stat. Section 554-A:1.
76. N.M. Stat. Ann. Section 46-13-1.
77. N.J. Stat. Ann. Section 3B:14-61.1.
78. N.Y. EPTL Section 13-A-1.
79. N.C. Gen. Stat. Section 36F-1.
80. N.D. Cent. Code Section 47-36-01.
81. Ohio Code Section 2137.01.
82. Or. Rev. Stat. Section 119.006.
83. PA. S.B. 320 (2019).
84. R.I. Gen Laws Section 33-27.1-1.
85. S.C. Code Section 62-2-1010.
86. S.D. Codified Laws Section 55-19-1.
87. Tenn. Code Section 35-8-101.
88. Tex. Est. Code Ann. Section 2001.001.
89. Utah Code Ann. Section 75-11-101.
90. Vt. Stat. Ann. tit. 14, Section 3551.
91. Va. Code Ann. Section 64.2-116.
92. Wash. Rev. Code Section 11.120.010.
93. D.C. L.B. 141 (2019).
94. W. Va. Code Section 44-5B-1.
95. Wisc. Stat. Section 711.01.
96. Wyo. Stat. Section 2-3-1001.
97. 12 Del. C. Section 3572.
98. Ibid.
99. Ibid.
100. 12 Del. C. Section 3573(1).
101. There’s a risk that a court in the state where the divorce is proceeding might decide that its law, not Delaware law, applies. However, at the least, a properly designed domestic asset protection trust will raise formidable obstacles for creditors.
102. CT. H.B. 7104 (2019).
103. Ind. Code Section 30-4-8-4.
104. Ind. Code Section 30-4-8-1.
105. Conn. Gen. Stat. Ann. P.A. 19-137, Section 100.
106. See supra note 103.
107. See supra note 105 and Ind. Code Section 30-4-8-6.
108. Conn. Gen. Stat. Ann. P.A. 19-137, Section 105(b).
109. Ibid.
110. Conn. Gen. Stat. Ann. P.A. 19-137, Section 105(a).
111. Conn. Gen. Stat. Ann. P.A. 19-137, Section 106.
112. Ind. Code Section 30-4-8-8(b).
113. Ibid.
114. Ibid.
115. Ind. Code Section 30-4-8-5.
116. Pfannenstiehl v. Pfannenstiehl, 55 N.E.3d 933 (Massachusetts Supreme Judicial Court 2016).
117. Uniform Directed Trust Act, ULC, www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=eedab7b6-8fd9-29f1-835f-ed4f385e12aa&forceDialog=1 (July 19, 2017).
118. Ark. Code Ann. Section 28-76-101.
119. Colo. Rev. Stat. Ann. Section 15-16-801.
120. CT. H.B. 7104 (2019).
121. Ind. Code Section 30-4-9-1.
122. Me. Rev. Stat. Section 2101.
123. Mich. Comp. Laws Ann. Section 700.7703a.
124. Neb. Rev. Stat. Section 30-4301.
125. Utah Code Ann. Section 75-12-101.
126. R.I. H.B. 5476 (2019).
127. Del. Code tit. 12, Section 3343.