Probate & Property Magazine


P R O B A T E   &   P R O P E R T Y
May/June 2008
Vol. 22 No.3

Section News

Section Officer and Council Nominations
In accordance with Article 6, Section 6.1(d) of the Bylaws of the ABA Section of Real Property, Trust and Estate Law, the Nominations Committee (1) presents the following for officer, delegate, and council member vacancies that will occur at the close of the Association year and (2) recommends the individuals designated to be appointed or re-appointed, as assistant secretaries to the Real Property and Trust and Estate Law Divisions.
The Nominations Committee is chaired by Kevin L. Shepherd of Baltimore, Maryland. The vice-chair is Christine L. Albright of Chicago, Illinois, and the members are Robert C. Paul of New York, New York; Patrick E. Mears of Grand Rapids, Michigan; and Julie K. Kwon of Chicago, Illinois.
The current Section Chair-Elect, Steve R. Akers, will automatically succeed Kathleen M. Martin as Chair of the Section at the close of the Annual Meeting, scheduled for August 2008 in New York, New York. The election for officers and council members will be held at the annual Section Business Meeting on Saturday, August 9, 2008, in New York, New York.
The Nominations Committee unanimously nominates the following officers, council members, and Section delegate:

Chair-Elect: Roger D. Winston
Trust and Estate Division Vice-Chair:
Alan F. Rothschild Jr.
Real Property Division Vice-Chair:
Andrew F. Palmieri
Section Secretary: Susan G. Talley
Finance and Corporate Sponsorship
Officer: Gideon Rothschild
Section Delegate to the House of
Delegates: David K.Y. Tang

Trust and Estate Council Members:
Katherine N. Barr
Marc S. Bekerman
Dominic J. Campisi
Susan Porter
Trust and Estate Division Assistant
Secretary: Terrence M. Franklin
Real Property Council Members:
Michael J. Glazerman
Jo-Ann M. Marzullo
Martin P. Miner
Sandra G. Porter
Stephen R. Romine
Real Property Division Assistant Secretary:
Dianne S. Coscarelli
Summary of Section Activities
Steve R. Akers
Bessemer Trust Co. NA
Dallas, Texas
Automatically assumes the position of Section Chair, term ending August 2009. Positions held in Section: Vice-Chair, Co-Chair, and Chair, Corporate Sponsorship Committee; Co-Chair, Task Force on Chapter 14 Proposed Regulations, Trust and Estate Division CLE Committees; Chair and Vice-Chair, Lifetime Transfers Committee; Member, Membership, Publications, Planning, Continuing Legal Education, Bylaws, and Handbook Committees; Assistant Secretary, Trust and Estate Division Council; Council Member; Finance and Corporate Sponsorship Officer; Section Vice-Chair, Trust and Estate Division.

Roger D. Winston
Ballard Spahr Andrews & Ingersoll, LLP
Bethesda, Maryland
Nominated for Section Chair-Elect, term ending August 2009. Positions held in Section: Chair, Common Interest Comm-unity Associations and Development and Financing of Condominium Projects Committees; Member, Special Committee on Affordable Housing; Chair, Managing Editor, and Editor Emeritus, Books and Media Committee; Member and Vice-Chair, Publications, CLE, and Planning Committees; Member, Nominations Committee; Member, Homeowners, Community, and Common Interest Community Associations Committee; Co-Chair, Committee on Committees; Council Member; Assistant Finance and Corporate Sponsorship Officer; Finance and Corporate Sponsorship Officer; Section Vice-Chair, Real Property Division.
Alan F. Rothschild Jr.
Hatcher, Stubbs, Land, Hollis & Rothschild
Columbus, Georgia
Nominated for a second term as Section Vice-Chair, Trust and Estate Division, term ending August 2009. Positions held in Section: Member, Vice-Chair, and Chair, Significant Current Decisions Committee; Member and Co-Chair, Technology and Economics Committee; Assistant Secretary, Trust and Estate Division; Council Member; Supervisory Council Member, Investment and Financial Planning, Business Planning, and Practice Management Groups; Member, Membership, Planning, Nominating, Continuing Legal Education, and Technology Committees; Vice-Chair, Public Information and Web Content Committee; Section Liaison, ABA Standing Committee on Solo and Small Firm Practitioners; Vice-Chair, Publications Committee.

Andrew F. Palmieri
Vorys, Sater, Seymour and Pease LLP
Alexandria, Virginia
Nominated for first term as Section Vice-Chair, Real Property Division, term ending August 2009. Positions held in Section: Vice-Chair and Co-Chair, Development and Financing of Common Interest Communities Committee; Member, Co-Chair, and Chair, Homeowners, Community, and Common Interest Community Associations Committee; Member, Collateral for Commercial Real Estate Loans Committee; Member, Committee on Committees, Membership, Planning, and CLE Committees; Vice-Chair and Co-Chair, Real Property Division CLE Committee; Co-Chair, Membership Committee.

Susan G. Talley
Stone Pigman Walther Wittmann LLC
New Orleans, Louisiana
Nominated for first term as Section Secretary, term ending August 2009. Positions held in Section: Editor, Real Property Articles Editor, and Associate Articles Editor, Probate & Property Magazine; Member, Mortgage Loan Structure and Origination Committee; Vice-Chair, Foreclosure and Related Remedies Committee; Supervisory Council Member, Multi-Family, Special Living and Residential Real Estate Committee; Member, Publications, Committees, Nominations, and Planning Committees; Vice-Chair Publications Committee; Supervisory Council Member, Residential, Multifamily and Special Use Group; Member, Task Force on USA PATRIOT Act and Gatekeeper Regulation; Editor, RPTE eReport.

Gideon Rothschild
Moses & Singer LLP
New York, New York
Nominated for third term as Finance and Corporate Sponsorship Officer, term ending August 2009. Positions held in Section: Chair, Asset Protection Planning and International Estate Planning Committees; Member, Section CLE Committee; Co-Chair, Trust and Estate Division CLE Committee; Council Member; Member and Co-Chair, Corporate Sponsorship Committee; Supervisory Council Member, Income and Transfer Tax Planning Group; Member, Planning Committee; Member, Task Force on USA PATRIOT Act and Gatekeeper Regulation.

David K.Y. Tang
K&L Gates
Seattle, Washington
Nominated for second term as Section Delegate to the House of Delegates, term ending August 2011. Positions held in Section: Chair, Foreign Investment in U.S. Real Estate Committee; Chair, Vice-Chair, and Member, Nominations Committee; Member and Vice-Chair, Membership Committee; Member, Bylaws Committee; Chair, Task Force on Affordable Housing; Council Member; Member and Co-Chair, Leadership Development Initiative Task Force; Member and Chair, Planning Committee; Member and Chair, Publications Committee; Member, Technology Committee; Chair and Vice-Chair, CLE Committee; Member, Digital Signature & E-Commerce Committee; Member, Multijurisdictional Practice Committee; Section Chair.

Trust and Estate Division Council
Katherine N. Barr
Sirote & Permutt PC
Birmingham, Alabama
Nominated for first term as Council Member, Trust and Estate Division, term ending August 2011. Positions held in Section: Co-Chair and Chair, Long Term Care, Medicaid and Special Needs Trusts Committee; Group Chair, Elder Law and Disability Planning Group; Member, Publications and Continuing Legal Education Committees.

Marc S. Bekerman
New York Law School
New York, New York
Nominated for second term on Council, Trust and Estate Division, term ending August 2011. Positions held in Section: Vice-Chair and Co-Chair, Trust and Estate Division CLE Committee; Vice-Chair and Chair, Non-Tax Issues in Planning and Administration of Estates and Trusts Committee; Vice-Chair, Administration and Distribution of Trusts and Estates Including Investments, Small Estates, Trusts and Guardianships Committee; Member and Vice-Chair, CLE Committee; Vice-Chair, Committee on Committees; Group Vice-Chair, Special Division Activities Group; Member and Vice-Chair, Community Outreach Committee; Member, Planning Committee.

Dominic J. Campisi
Evans Latham Campisi
San Francisco, California
Nominated for a first full term as Council Member, Trust and Estate Division, term ending August 2011. Positions held in Section: Member, Vice-Chair, and Chair, Estate & Trust Litigation Committee; Associate Editor, Media/Book Products Program; Vice-Chair, Study Committee on Law Reform; Chair, Malpractice Committee; Member, H-4 Study Committee on Law Reform; Section Liaison, ABA Coordinating Group on Bioethics & the Law; National Conference of Lawyers & Corporate Fiduciaries; Co-Chair, Bioethics Committee; Chair, Litigation and Controversy Group; Member, Corporate Sponsorship and Continuing Legal Education Committees; Council Member.

Susan Porter
U.S. Trust, Bank of America Private Wealth Management
New York, New York
Nominated for first term as Council Member, Trust and Estate Division, term ending August 2011. Positions held in Section: Vice-Chair, Fiduciary Environmental Problems and Postmortem Transfer Tax Planning Committees; Member and Chair, National Conference of Lawyers and Corporate Fiduciaries; Member, Investment and Cash Flow Planning and Administration and Distribution of Estates and Trusts, Including Investments, Small Estates and Trusts Committees; Co-Chair and Chair, Fiduciary Income Tax Committee; Group Chair and Vice-Chair, Income and Transfer Tax Planning Group; Member, Publications, Communications, Corporate Sponsorship, Groups and Substantive Committees, and Planning Committees.

Terrence M. Franklin
Sacks, Glazier, Franklin & Lodise
Los Angeles, California
Recommended appointee for a fourth term as Assistant Secretary, Trust and Estate Division, term ending August 2008. Positions held in Section: Chair, Attorneys Partnering with Non-Lawyers Committee; Section Liaison to ABA Section on Dispute Resolution; Chair, Ethics & Malpractice Committee; Section Liaison to ABA Task Force on Attorney Client Privilege; Group Vice-Chair, Practice Management Group; Member, CLE and Diversity Committees; Member, National Conference of Lawyers and Corporate Fiduciaries.

Real Property Division Council
Michael J. Glazerman
Burns & Levinson LLP
Boston, Massachusetts
Nominated for second term as Council Member, Real Property Division, term ending August 2011. Positions held in Section: Vice-Chair, Commercial Leasing Committee; Chair, Condition of the Premises Committee; Chair, Office Leasing Committee; Member, Design and Construction Committee; Articles Editor, Probate & Property Magazine; Member, Planning Committee; Member, Committee on Committees; Member, Corporate Sponsorship Committee.

Jo-Ann Marzullo
Posternak Blankstein & Lund LLP
Boston, Massachusetts
Nominated for a first term on Council, Real Property Division, term ending August 2011. Positions held in Section: Vice-Chair and Chair, Emerging Issues Committee; Member and Vice-Chair, Design and Construction Including ADA Act Committee; Member and Vice-Chair, Continuing Legal Education Committee; Chair, Property, Casualty & Other Non-Title Insurance Committee; Group Vice-Chair and Chair, Commercial Real Estate Transactions Group; Member and Co-Chair, Corporate Sponsorship and Planning Committees.

Martin P. Miner
Holland & Knight LLP
New York, New York
Nominated for second term as Council Member, Real Property Division, term ending August 2011. Positions held in Section: Chair, Rent and Options Committee; Chair, Industrial and Warehouse Leasing Committee; Member, Committee on Committees, Real Property Division Advisory Board, Publications Committee, Nominating Committee, and Community Outreach Committee.

Sandra G. Porter
Carlton Fields PA
Tampa, Florida
Nominated for first term as Council Member, Real Property Division, term ending August 2011. Positions held in Section: Chair, Development, Operation and Management of Community Associations Committee; Chair, Common Interest Ownership Developments Committee; Group Chair, Hospitality, Community Recreation and Common Interest Developments Group; Member, Communications Committee; Member, Continuing Legal Education Committee.

Stephen R. Romine
LeClair Ryan
Norfolk, Virginia
Nominated to Council, Real Property Division, to fill a two-year vacancy, term ending August 2010. Positions held in Section: Vice-Chair and Chair, Wetlands and Endangered Species Committee; Chair, Environment, Land Use, and Contaminated Property Committees; Member, Continuing Legal Education, Groups and Substantive Committees, Membership, and Planning Committees; Vice-Chair, Groups and Substantive Committees Committee.

Dianne S. Coscarelli
Thompson Hine LLP
Cleveland, Ohio
Recommended appointee for first term as Assistant Secretary, Real Property Division, term ending August 2009. Positions held in Section: Chair, Construction Lending Committee; Chair, Mezzanine Finance Committee; Member, Continuing Legal Education Committee; Member, Nominations Committee.

Young Lawyers Network
The Marital Deduction and the Noncitizen Spouse
The importance of marital status cannot be understated in transfer tax planning. The U.S. transfer tax system is designed to allow spouses to pass assets to one another in life and on death without the imposition of transfer taxes. But the spouse receiving the assets must be a U.S. citizen for the transfer to qualify for an unlimited marital deduction. It is critical to determine the citizenship of your married clients.
Before 1988 the citizenship of the deceased spouse determined the availability of the marital deduction. If a citizen spouse died leaving an estate to a noncitizen spouse, however, there was concern that the surviving spouse would return to his or her country of origin and die a nonresident alien. If that were to occur, no federal estate tax would be imposed except on assets held in the United States. No one knows the extent to which estate tax was sidestepped in this way, but the perception that this was occurring gave rise to the Technical and Miscellaneous Revenue Act of 1988 (TAMRA).
After TAMRA, the surviving spouse’s citizenship governs the availability of the federal estate tax marital deduction. The marital deduction is generally disallowed if the surviving spouse is not a U.S. citizen, even if the deceased spouse is a U.S. citizen or a resident alien, unless two elements are established. First, the transfer still has to be qualified for the marital deduction if the surviving spouse had been a U.S. citizen. Second, the surviving spouse must become a U.S. citizen before the date on which the federal estate tax return is made or the property must pass from the decedent to the surviving spouse in a qualified domestic trust (QDOT) for which an election has been made.
If the surviving spouse were to become a U.S. citizen before the time the federal estate tax is deemed made, the marital deduction is determined as if the surviving spouse were a U.S. citizen at the first spouse’s death. The problem is it requires more than merely applying for citizenship; citizenship must be granted before the time the return is made. The federal estate tax return is deemed “made” as of the last date that it could have been filed (including extensions), unless the return is filed late. If the return is filed late, the “made” date is the date of actual filing. In addition, the surviving spouse must reside in the United States at all times after the decedent spouse’s death and before attaining U.S. citizenship.
Alternatively, if the surviving spouse does not become a U.S. citizen before the date on which the federal estate tax return is made, the property can pass to the surviving spouse in a QDOT for which an election has been made. Property can pass to a surviving spouse in a QDOT in one of three primary ways.
First, a direct transfer to a QDOT that had been established by the pre-deceased spouse will qualify. This is the ideal scenario, if there had been sufficient lifetime planning. Unfortunately, that is not always the case, and planning begins anew post-mortem.
Second, property can qualify by a direct transfer to a trust that is not a QDOT but that is reformed to meet QDOT requirements in a timely manner. Any reformation must comport with the instrument establishing the trust or by a judicial proceeding effective under local law. The trust can be revocable by a surviving spouse or be subject to a general power of appointment, but no one can have a power to amend the trust in such a way as to disqualify it as a QDOT. If it is a nonjudicial reformation, it must be completed by the time required for filing the federal estate tax return. If it is a judicial reformation, then it simply must be commenced on or before the return due date, regardless of the date that the return is actually filed.
Third, the property can qualify by a transfer to the surviving spouse, followed by a transfer or irrevocable assignment by the surviving spouse to a QDOT. The property must be either transferred or assigned irrevocably to a QDOT before the federal estate tax return is filed. The property must be transferred or assigned before the administration of the estate is completed. If there is no administration, the transfer must be completed within the one-year anniversary of the due date for filing the decedent’s estate tax return, including all extensions. A QDOT recipient could be created by the deceased spouse, the executor of the deceased spouse, or even a surviving spouse/surviving spouse’s legal representative.
Clients are asked for all types of personal information, including marital status, children, grandchildren, finances, and health. If we fail to ask our clients whether they are U.S. citizens, however, we are missing an opportunity to avoid the post-mortem headache necessary to achieve the marital deduction for a noncitizen spouse.

PROFILES IN MEMBERSHIP

Anta Cissé-Green
Anta Cissé-Green is an associate in the Estate and Personal Clients Group at the New York office of Sullivan & Cromwell, LLP, where she practices in the areas of estate planning, estate and trust administration, residential real estate, and tax-exempt organizations. She graduated from Cedar Crest College (B.A. 1995) and from Brooklyn Law School (J.D. 2003, magna cum laude). She has been a member of the American Bar Association since her first year in law school. Anta first became active in the ABA Law Student Division when she was appointed student director for the National Appellate Advocacy Competition.
Anta joined RPTE in 2004 and was later chosen as a 2005–07 Trust & Estate fellow as part of the Section’s Fellows Program. As a fellow, Anta was appointed to the Estates & Gift Tax Committee, where she was able to join the Committee Task Force in drafting and submitting comments to Rev. Proc. 2005-24.
“It has been a pleasure to join the Section. Although I was initially intimidated by the people that I met, I quickly realized that the members of the Section are not only the most knowledgeable individuals in this field, but also the friendliest and most generous. I have learned so much in my three years of involvement in the Section and am very excited to do more and learn more.” In addition to the mentoring opportunities she has experienced, Anta has been awed by the numerous leadership opportunities. “I had no idea the path to leadership was made available to ‘junior’ lawyers like myself at such an early stage of my involvement in the Section. We are not only encouraged to step up and become leaders, but we are also given numerous opportunities to develop our skills—particularly our public speaking skills.”
Anta participated as a speaker in the First Young Lawyers Institute the Section held at the 2007 Spring Symposium and subsequently was able to participate as a panel member on an eCLE program.
Anta is also an active member of her community and has been awarded the Legal Aid Society 2007 Pro Bono Service Award for her work on behalf of children in dependency and neglect proceedings in Kings County Family Court of New York.
Anta spends her spare time with her husband and her two sons—3 years old and 16 months old—in numerous play dates and birthday parties each month. n

Emanuel B. Halper
Manny Halper, chair of RPTE’s Community Outreach Standing Committee, splits his time among his real estate law practice, real estate business, and teaching of real estate law at Hofstra University School of Law. Now a specialist in commercial leasing and commercial real estate contracts, he still can’t quite grasp how it all happened.
What made you want to be a lawyer? “I got the bug from my father and some old movies. When I was 10, my father told me that, if you like history, you should become a lawyer. That seemed reasonable enough to me then. John Garfield influenced me too. He was a leading man in 1930s and 1940s movies. Often playing a lawyer and a really feisty one, a stunningly beautiful girl fell in love with him in every movie. Unfortunately, he would offend the mob toward the end of the movie. I couldn’t bear the final scene when they threw his body over a cliff and into the Hudson River (somewhat of a career deterrent).”
What’s Community Outreach about? “The Section has always been eager to diversify both its membership and leadership. Good idea, but not so many members of minority groups are Section members. Worse, very few minority group lawyers choose to practice real estate law, estate planning, or probate law. So I asked the Section to back me in an effort to train minority bar association members in these branches of the law, and the Section has been doing that enthusiastically. In partnership with minority bars and state and local bars, we offer courses in real estate, estate planning, and probate administration in five cities.”
You tell me you specialize in commercial lease law, you do commercial leases in your real estate business, you teach commercial leasing in a law school, and one of your principal contributions to the Section is in commercial leasing. Isn’t that obsessive? “As the years flew by, I was increasingly drawn to commercial leasing—maybe excessively. I confess having recurring real estate dreams and being very disappointed when the alarm clock separates me from them. I’ve been told that it’s okay when you dream about rent clauses. But dreaming about destruction and condemnation clauses is a different story altogether. It might be a signal that you need professional help of a different sort.”


P R O B A T E   &   P R O P E R T Y
January/February 2008
Vol. 22 No.2