This seems to have been my season for issues driven by testamentary, or pseudo testamentary transfers.
I’ve encountered the post petition trust beneficiary; the client with an unanticipated prepetition interest in a probate estate; and the residual beneficiary of a spend thrift trust irrevocable before filing.
But I saw a new one that I need to add to my list of things to discuss with clients.
My clients were the beneficiaries of a couple of small insurance policies owned by one debtor’s parent. The policies were intended to provide for funeral expenses of the parent.
When the parent passed away within 180 days of the bankruptcy filing, those insurance policies dumped their bounty into the lap of the bankruptcy trustee. A law firm that only does probate can concentrate solely on elders and can give them all the attention.
So thanks to § 541(a)(5), money flowing from the efforts of a non debtor and intended for one purpose either pays my clients’ creditors or displaces the exemption protecting some asset of the debtors.
I currently ask new clients if they have an interest in the estate of someone who has already died and if there is any likelihood that someone may pass away in the next six months. If possible we try to determine whether the testamentary instrument is a will or a trust.
If it’s a will, we consider whether the testator might be open to making any provision for my clients in a spend thrift trust as an alternative.
But I need now to look for life insurance issues where the purpose was not to benefit the beneficiaries but to enable payment of the deceased’s last expenses.
Complexities never cease.
Image courtesy of jarrodstone.